(5ornfU Sam ^rijoiil Slibtary 
 
Cornell University Library 
 K 230.K79P5 1914 
 
 Philosophy of law / 
 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021093434 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 XII 
 Philosophy of Law 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Edited by a CommiUee of the 
 ASSOCIATION OF AMERICAN LAW 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 
 BEROLZHEIMER 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 Gottingen. Translated by 
 ISAAC HUSIK of the University of Pennsylvania. 
 
 VI. THE POSITIVE PHILOSOPHY OF LAW. By I. VANNI 
 of the University of Bologna. Translated by JOHN LISLE 
 of the Philadelphia Bar. 
 
 VII. MODERN FRENCH LEGAL PHILOSOPHY. By A. 
 FOUILL:eE, 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. 
 
 VIII. 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 PHILOSOPHY. 
 By Various Authors. 
 
 X. THE FORMAL BASIS OF LAW. By G. DEL VECCHIO of 
 
 the University of Bologna. Translated by JOHN LISLE of 
 the Philadelphia Bar. 
 
 XI. THE SCIENTIFIC BASIS OF LEGAL JUSTICE. 
 
 XII. 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 TOURTOULON of the University of Lausanne. Trans- 
 lated by ROBERT L. HENRY, JR., of the University of 
 North Dakota. 
 
Modem Legal Philosophy Series: Vol. XII 
 
 Philosophy of Law 
 
 BY 
 
 JOSEF p)HLER 
 
 Professor of Law in the University of Berlin 
 TRANSLATED FROM THE GERMAN BY 
 
 ADALBERT ALBRECHT 
 
 Associate Editor of the Journal of Criminal Law and Criminology 
 
 WITH AN EDITORIAL PREFACE BY 
 
 ALBERT KOCOUREK 
 Lecturer on Jurisprudence in Northwestern University 
 
 AND WITH INTRODUCTIONS BY 
 
 ORRIN N. CARTER 
 
 Justice of the Supreme Court of Illinois 
 
 AND 
 
 WILLIAM CALDWELL 
 
 Professor of Logic and Moral Philosophy in McGill Universityi 
 
 Montreal 
 
 BOSTON 
 
 THE BOSTON BOOK COMPANY 
 
 1914 
 
c,l 
 
 /^ 35 9 
 Copyright 1914 
 
 By the boston book company 
 
 The Riverdale Press, Brookline, Mass., U.S.A. 
 
EDITORIAL COMMITTEE OF THE ASSOCIATION 
 OF AMERICAN LAW SCHOOLS 
 
 Joseph H. Drake, Professor of Law, University of Michigan. 
 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. 
 Arthur W. Spencer, Editor of the Green Bag, Boston, Mass. 
 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. 
 William G. Hastings, Lincoln, Neb. (Dean of the Faculty of 
 
 Law, State University.) 
 Robert L. Henry, Jr., Grand Forks, N. D. (Professor of Law in 
 
 the State University). 
 Isaac Husik, Philadelphia, Pa. (Lecturer on Philosophy in the 
 
 University of Pennsylvania). 
 Mrs. Rachel Szold Jastrow, Madison, Wis. 
 Albert KoCOUREK, Chicago, III. (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). 
 
GENERAL INTRODUCTION TO 
 THE SERIES 
 
 By the Editorial Committee 
 
 "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 
 
vi 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. The 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 vii 
 
 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- 
 
viii 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 ix 
 
 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. 
 
X 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. 
 
CONTENTS 
 
 Page 
 
 General Introduction to the Series ^ 
 
 Editorial Preface to this Volume, by Albert Kocourek xv 
 
 Introduction by Orrin N. Carter xxv 
 
 Introduction by William Caldwell xxxv 
 
 Author's Preface xliii 
 
 GENERAL PART 
 
 CHAPTER I 
 The Philosophy of Law and its Significance 
 
 Section I. Introduction, with Excursus 3 
 
 Section II. Philosophy and the Philosophy of Law 12 
 
 CHAPTER II 
 The Development of Culture 
 
 Section III. Logicaland Illogical Elements 28 
 
 Section IV. Evolution and Psychic Life 36 
 
 1. General Remarks 36 
 
 2. The Psychic Disposition 43 
 
 3. Psychic Impulses 45 
 
 Section V. Manner of Development 49 
 
 1. Collectivity and Individualization 49 
 
 2. The Culture of Wealth in Particular 54 
 
 CHAPTER III 
 ' Culture and Law 
 
 Section VI 58 
 
 CHAPTER IV 
 Legal Order and Peaceable Regulation 
 
 Section VII 63 
 
 CHAPTER V 
 
 The Technic of the Law 
 
 Section VIII. I. Rights and the Cultural Order 66 
 
 1. General Remarks 66 
 
 2. General Rights and Limited Rights. ... 71 
 
 (o) Servitudes 71 
 
 (6) Securities 78 
 
xii CONTENTS 
 
 Section IX. II. Personality and the Activity of the Person . . 80 
 
 Section X. III. Claims 84 
 
 Section XI. IV. Legal Order 86 
 
 1. Sources of the Law 86 
 
 2. Equity and Law 86 
 
 3. Dual System of Acquiring Legal Rights 87 
 
 4. Contingency and Legal Order 89 
 
 SPECIAL PART 
 A. The Law of Individual Persons 
 
 CHAPTER VI 
 
 The Law of Persons 
 
 Section XII. I. The Law of Class 92 
 
 1. Slavery 92 
 
 2. Nobility 96 
 
 Section XIII. II. Family Law 98 
 
 1. General Remarks 98 
 
 2. Exogamy 103 
 
 3. Family 105 
 
 (a) Organization 105 
 
 (6) Family Education 108 
 
 (c) Family Property 109 
 
 (d) Illegitimate Children Ill 
 
 4. Artificial Relationships 114 
 
 (a) General Remarks 114 
 
 (b) Adoption 115 
 
 (c) Blood-Fraternity 117 
 
 5. Substitutive Family Law 1 18 
 
 CHAPTER VII 
 
 The Law of Property 
 
 Section XIV. I. The Law of Things 120 
 
 1. General Remarks 120 
 
 2. Acquisition and Loss of Ownership 127 
 
 (a) Original Acquisition 127 
 
 (6) Barter and its Consequences 129 
 
 (c) Extinction I33 
 
CONTENTS xiii 
 
 Section XV. II. The Law of Obligations 134 
 
 First Division : The Law of Obligations in General 134 
 
 1. Foundationsof the Law of Obligations 134 
 
 2. Development of the Law of Obligations 144 
 
 3. Extinction of Debts 150 
 
 4. Securities 152 
 
 (o) Pledge 152 
 
 (J) Suretyship 158 
 
 (c) Joint Liability 161 
 
 Second Division: The Law of Obligations in Detail 163 
 
 Section XVI. First Sub-division: Barter 163 
 
 1. Barter of Things 163 
 
 (o) Foundations 163 
 
 (6) The Evolution of Barter 169 
 
 2. The Barter of Value — Interest 170 
 
 3. Commerce in Risks 175 
 
 4. Commerce in Service 177 
 
 Section XVII. Second Sub-division : Partnership 179 
 
 Section XVIII. Third Sub-division: Gifts 184 
 
 Section XIX. Fourth Sub-division: Compensation 187 
 
 Section XX. III. Property asa Whole 191 
 
 1. General Remarks 191 
 
 2. Inheritance 192 
 
 (a) In General 192 
 
 (6) Indivisible and Divisible Inherit- 
 ance 196 
 
 (c) Disposal of Property after Death . 199 
 
 B. The Law of the Body Politic 
 
 CHAPTER VIII 
 State Law 
 
 First Main Division: The State 207 
 
 Section XXI. I. Nature and Importance 207 
 
 1. The State as a Personality 207 
 
 2. The State and the Individual 209 
 
 3. The State and its Organs 210 
 
 Section XXII. II. The Evolution of the State 211 
 
 SectionXXIII. III. The Stateldea 216 
 
 1. State Theorists 216 
 
 (o) Church and State '. . . . 221 
 
 • (6) Contract Theory of the State 223 
 
 2. Statesmen 227 
 
xiv CONTENTS 
 
 Section XXIV. IV. The Organization of the State 230 
 
 1. General Remarks 230 
 
 2. Kingship 232 
 
 3. The Popular Assembly 237 
 
 Second Main Division : The Activity of the State 241 
 
 Section XXV. A. General Remarks 241 
 
 B. The Administration of Justice 243 
 
 Section XXVI. I. Legal Procedure 243 
 
 1. The Legal Procedure of the Civil Law 243 
 
 (a) Fundamental Ideas 243 
 
 (6) Religion and Reason in Procedure 250 
 (aa) Courts 255 
 
 (c) The Philosophy of Legal Procedure 257 
 
 (d) Proof Founded on Reason 262 
 
 (e) Execution and Bankruptcy 264 
 
 2. Administrative Jurisdiction 267 
 
 Section XXVII. II. CriminalLaw 268 
 
 1. Criminal Law in the Proper Sense .... 268 
 
 (a) Kin-Revenge 268 
 
 (6) Internal and External Aspect of 
 
 Acts 275 
 
 (c) State Criminal Law 276 
 
 (aa) General Remarks 276 
 
 (bb) Justice 281 
 
 (cc) The Need of Punishment. . 286 
 (dd) Details of Criminal Law . . 287 
 
 2. The Realization of Criminal Law 291 
 
 Section XXVIII. III. Peaceable Procedure 293 
 
 CHAPTER IX 
 
 The Law of Human Society — The Law of Nations 
 
 Section XXIX. I. Law of Nations and Federated States. . . 294 
 
 Section XXX. II. Super-National Law 299 
 
 Section XXXI. III. Achievements and Aspirations 304 
 
 First Appendix. Author's Bibliography 311 
 
 Second Appendix. Kohler's Philosophy of Law, by Adolf Lasson 319 
 Third Appendix. Kohler's Philosophical Position, by 
 
 J. Castillejo y Duarte 335 
 
 Index 385 
 
EDITORIAL PREFACE 
 
 By Albert Kocourek • 
 
 To attain the highest rank in a learned profession is a 
 great achievement in any age; but for a writer to be 
 accorded indisputable juristic leadership while yet in the 
 midst of his activities, and in a period of the world's 
 history unlike any other in its specialism of knowledge 
 and its competitive struggle for learning, is a highly 
 noteworthy distinction. One of our most competent 
 investigators, himself an authority in jurisprudence, and 
 holding entirely contrary fundamental notions as to the 
 metaphysical basis of law, says, speaking of the neo- 
 Hegelians: 'The leader of this school, Josef Kohler, 
 without question the first of living jurists, is remarkable 
 for the breadth as well as for the depth of his legal 
 scholarship. A pioneer in comparative legal history, he 
 has made himself an authority not merely upon the gen- 
 eral subject, but upon more than one special branch, 
 and upon the legal history of more than one primitive 
 people. At the same time, he has made himself an 
 authority upon such specialized subjects of dogmatic 
 law as the law of bankruptcy and patent law, has made 
 important contributions to modern criminalistic, has 
 written a text-book of the German Civil Code, and has 
 taken the lead in the most active and most widely 
 accepted movement in the modern Philosophy of Law. 
 No one else has come so near to taking all legal knowledge 
 
 » Lecturer on Jurisprudence in Northwestern University, and mem- 
 ber of the Editorial Committee for this Series. 
 
xvi EDITORIAL PREFACE 
 
 for his province. No one, therefore, is so well prepared 
 to reduce all legal knowledge to a system." ^ 
 
 Whether, in the present case, the remarks of Solon on 
 happiness, in Plutarch's narrative, have any applica- 
 tion to the matter of fame, may be waived ; and we may 
 readily accept these generous conclusions issuing out of 
 a hostile camp of legal philosophy. 
 
 Yet, something more should be said regarding the 
 amazing extent and variety of Kohler's intellectual 
 creation. On the twenty-fifth anniversary of his pro- 
 fessorial labors, the "Juristisches Literaturblatt" (Ber- 
 lin) in a special supplement,* published an index of his 
 writings which at that time numbered 526 separate titles. 
 A complete statement of Kohler's works within his life- 
 • time would be a matter of some practical difficulty ; 
 since new announcements are constantly appearing show- 
 ing his restless activity in this or that department of 
 law, in philosophy, in general literature, or in the fine 
 arts. Before a list could be made up and put into 
 printer's type, it would be incomplete ; and such an effort 
 would therefore exactly parallel the Eleatic problem 
 of Achilles and the tortoise. Kohler's extraordinary 
 creative fertility calls to mind a countryman born just a 
 hundred years earlier — Goethe. There was a collec- 
 tion of Goethe's works, published in his lifetime, which 
 numbered forty volumes, and which was increased by 
 posthumous writings by twenty additional volumes. 
 The works of lawyers are not usually collected, as in 
 other fields of literature; and the present writer does 
 not know the extent of Kohler's works, measured by the 
 Goethe standard of bulk; but it is unquestionable that 
 the total at this moment would exhibit a remarkable 
 
 1 Roscoe Pound, "The Scope and Purpose of Sociological Jurispru- 
 dence" (reprinted from The Harvard Law Review, Vol. XXIV No 8 
 and Vol. XXV, Nos. 2 and 6; Cambridge, 1912), p. 155, sej. ' ' 
 
 8 Bd. XV, 30 September, 1903. 
 
EDITORIAL PREFACE xvii 
 
 showing of industry, to pass by entirely the quality of 
 the labor. 
 
 As Goethe was nearly everything in letters, and 
 many things besides — lawyer, art critic, theatre direc- 
 tor, statesman, scientist; so Kohler has written authori- 
 tatively in many departments of the law, and been 
 active in many other ways, — as philosopher, poet, 
 musician, art critic, ethnologist, criminologist, teacher; 
 with all the inspiration of the former, and without his 
 human frailties. 
 
 What has been said of the extent of Kohler's writing 
 can give no adequate notion of its astounding range. 
 When a writer's contributions are accepted in journals 
 of standing and authority, he naturally is also credited 
 with authority; but when such a writer is able to make 
 himself heard in a half-dozen different circles of learn- 
 ing he is regarded as one possessed of unusual talents. 
 But what shall be said of a man who seems to have 
 made an impression on a score or scores of fields of 
 specialized effort? Closer inspection of the list above 
 referred to, which, since its date, has doubtless been 
 augmented by hundreds of titles, shows, to mention only 
 general subjects, Kohler's interest in such matters as 
 Philosophy of Law, General Jurisprudence, History of 
 Civil Law, Obligations, the Law of Things, the Law of 
 Personality, the Law of Immaterial Things, Family Law, 
 Succession, Commercial Law, Maritime Law, the Law 
 of Insurance, Civil Procedure, Bankruptcy, Criminal 
 Law, Criminal Procedure, Public and Administrative 
 Law, Comparative Law, Legal Ethnology, History, 
 Folk-lore, Esthetics, Music Criticism and Composi- 
 tion, Biography, Humor, and Poetry. 
 
 The detail is even more surprising. Thus, we find 
 such decided contrasts as a book on patent law of 
 nearly a thousand pages, against which we may oppose, 
 
xviii EDITORIAL PREFACE 
 
 at random, something from another world, his opus 8, a 
 composition for the voice with a piano accompaniment; 
 or, again, a volume of studies on the Law of Pledge, 
 against an essay on the Veronese school of painting; 
 and so on to a length to make one marvel if after all 
 Kohler is not, like Homer, something of a myth, an illu- 
 sion of literature personified; or perhaps, if his his- 
 toricity cannot be disputed, whether it may not be said 
 of him, as has been said of other men who have been 
 prolific or versatile in creation, that these many titles 
 are the work of many minds, and that Kohler has been 
 after the fashion of the elder Dumas, only the directing 
 and responsible patron. 
 
 Among the important works' of Kohler up to the year 
 1903 are the following : 
 
 GENERAL JURISPRUDENCE 
 
 (3) "Die Ideale im Recht" (Berlin, 1891, pp. 105; also translated 
 
 into Polish). 
 (12) "Einfiihrung in die Rechtswissenschaft" (Leipzig, 1902, pp. 
 
 208; now in the 4th ed.; also translated into Russian). 
 
 CIVIL LAW 
 
 (20) "Rechtsfalle zum Studium des franzosischen Zivilrechts" 
 (Mannheim, 1877-8, pp. 112). 
 
 (21) "Gesammelte Abhandlungen aus dem gemeinen und franzosi- 
 schen Zivilrecht" (Mannheim, 1883, pp. 490). 
 
 (23) "Zwolf Studien zum B.G.B." (Berlin, 1900, pp. 379). 
 
 (24) "Biirgerliches Recht" (in Holtzendorff-Kohler's "Encyclopadie 
 der Rechtswissenschaft," 6th ed., Leipzig, 1903, pp. 95). 
 
 (25) "Lehrbuch des Burgerlichen Rechts nach dem Biirgerlichen 
 Gesetzbuche" I, (Berlin, 1904); (a second volume has since been 
 published). 
 
 (52) "Das romische Recht am Niederrhein'' (with Liesegang); 
 (Stuttgart, 1896-98, pp. 307). 
 
 •Reference is made generally to first editions; and the works noted 
 are from those entered in the index of the "Juristisches Literaturblatt." 
 The original serial numbers are retained and shown in parentheses at the 
 left of each title. 
 
EDITORIAL PREFACE xix 
 
 (63) "Zur Lehre von den Pertinenzen" (Ihering's Jahrbticher, N. F. 
 
 14 Bd., 1888, pp. 183). 
 (66) "tiber den Willen im Privatrechte" (Ihering's J., 28 Bd., 1889, 
 
 pp. 120). 
 (88) "Die Menschenhulfe im Privatrecht" (Ihering's J., 25 Bd., 
 
 1887, pp. 140). 
 (104) "Pfandrechtliche Forschungen" (Jena, 1882, pp. 369). 
 (107) "Der Dispositionsniessbrauch" (Ihering's J., 24 Bd., 1886, 
 
 pp. 141). 
 (114) "Beitrage zum Servitutenrecht" (Archiv fur Civ. Praxis, 
 
 87 Bd., 1897, pp. 155). 
 (129) "Die Idee des geistigen Eigentums" (Archiv fur C. P., 82 
 
 Bd., 1894, pp. 101). 
 
 (133) "Industrierechtliche Abhandlungen und Gutachten" (Berlin, 
 1899, pp. 236). 
 
 (134) "Autor- und industrierechtUche Abhandlungen und Gutachten" 
 (Berlin, 1901, pp. 221). 
 
 (135) "Das Recht des Markenschutzes" (Wurzburg, 1885, pp. 580). 
 (160) "Das Autorrecht" (Jena, 1880, pp. 352). y 
 (166) "Das literarische und artistische Kunstwerk und sein Autor- 
 
 schutz" (Mannheim, 1892, pp. 205). 
 (170) "Autorrechtliche Studien" (Archiv C. P., 85 Bd., 1896, pp. 
 
 121). 
 (174) "Deutsches Patentrecht," (Mannheim, 1878, pp. 739). 
 (177) "Forschungen aus dem Patentrecht" (Mannheim, 1888, 
 
 pp. 126). 
 (194) "Handbuch des deutschen Patentrechts" (Mannheim, 1901, 
 
 pp. 971). 
 (224) "Zivilprozess- und Konkursrecht" (in Holtzendorff-Kohler 
 
 Ency. pp. 158). 
 (246) "Prozessrechtliche Forschungen" (Berlin, 1889, pp. 151). 
 
 (250) "Ungehorsam und VoUstreckung im Zivilprozess" (Freiburg 
 i. B., 1894, pp. 160). 
 
 (251) "Gesammelte Beitrage zum Zivilprozess'' (Berlin, 1894, 
 pp. 604). 
 
 (267) "Leitfaden des Deutschen Konkursrechts fiir Studierende" 
 (Stuttgart, 1893, pp. 220; 2d ed. 1903, pp. 374). 
 
 CRIMINAL LAW 
 
 (274) "Studien aus dem Strafrecht" I (Mannheim, 1890, pp. 238). 
 (279) "Die peinliche Gerichtsordnung Kaiser Karls V" (with Scheel); 
 (Halle, 1900, pp. 167). 
 
XX EDITORIAL PREFACE 
 
 (281) "Die Bambergische Halsgerichtsordnung" (with Scheel); 
 (Halle, 1902, pp. 312). 
 
 COMPABIATIVE LAW 
 (321) "Rechtsphilosophie und Universalrechtsgeschichte" (in Holt- 
 
 zendorff-Kohler, 1903, pp. 1-69). 
 (356) "Zur Urgeschichte der Ehe" (Stuttgart, 1897, pp. 167). 
 (368) "Rechtsvergleichende Studien" (Berlin, 1889, pp. 252). 
 (389) "Des Recht der Azteken" (Stuttgart, 1892, pp. 111). 
 (403) "Aus dem Babylonischen Rechtsleben" (with Reiser) (Leipzig, 
 
 1890-91-94r-98, pp. 272). 
 (408) "Hammurabis Gesetz" (with Peiser-Ungnad, 1904-1909). 
 (424) "Rechtshistorische und rechtsvergleichende Forschungen'" 
 
 (1882, pp. 100). 
 
 .ESTHETICS 
 
 (447) "Aus dem Lande der Kunst" (Wurzburg, 1882, pp. 86). 
 
 (448) "Asthetische Streifereien" (Mannheim, 1889, pp. 70). 
 
 (454) "Vom Lebenspfad" (collected essays) (Mannheim, 1902, 
 
 pp. 212). 
 (470) "Shakespeare vor dem Forum der Jurisprudenz" (Wurzburg, 
 
 1884, pp. 300). 
 
 POETRY 
 (498) "Lyrische Gedichte und Balladen" (Mannheim, 1892, pp. 
 
 362). 
 (500) "Der Leibestod" (Mannheim, 1893, pp. 112). 
 (505) "Neue Dichtungen" (Mannheim, 1895, pp. 263). 
 
 (509) "Dantes heilige Reise" (3 vols. Koln., 1901-2-3, pp. 224, 
 234, 222). 
 
 (510) "Aus Petrarcas Sonettenschatz" (Berlin, 1902, pp. 115). 
 
 Among numerous later works of Kohler there can 
 only be noted here two works in the field of Philosophy of 
 Law — his "Moderne Rechtsprobleme" (1907), and the 
 "Lehrbuch der Rechtsphilosophie" (Berlin, 1909), which 
 is the work now rendered into English. 
 
 Kohler's style is affirmative and belligerent. He is 
 never in doubt as to his own position, and does not hesi- 
 tate to make that position clear. It requires a virile 
 disposition for such capacity as he has exhibited, and 
 
EDITORIAL PREFACE xxi 
 
 this energy frequently is shown in combating opposition. 
 As an antagonist, Kohler fights with deadly weapons. 
 The late Professor James could only think of an idealistic 
 philosophy as a tender-minded way of thinking; but, 
 surely, he would have found neo-Hegelianism entirely 
 too realistic to square with his characterization. 
 
 The elemental savagery of German criticism has 
 probably struck every reader who has looked into Prus- 
 sian reviews. The summary way in which antagonists 
 are disposed of will, from time to time, be disclosed in 
 the ensuing text, even as the lethal blows are softened 
 by the shock-absorbing devices of the English language 
 in the hands of the translator. The German lan- 
 guage is blunt and plain ; it does not cut, like the French, 
 with a nice precision, leaving a neatly dissected corpse, 
 but annihilates; and the militant temperament of the 
 imperial capital allows no opposition — not even on the 
 quagmires of metaphysics. 
 
 As Kohler is neo-Romantic in art, it would be strange 
 to find him holding to a classical dialectic in Philosophy 
 of Law. This anomaly does not exist, and Kohler 
 belongs to the same school as Berolzheimer, author of 
 "The World's Legal Philosophies" in this series, and 
 Lasson, the genial thinker whose good-natured apprecia- 
 tion appears as a part of this volume. Kohler's philo- 
 sophical position is not found completely stated in its 
 outlines and implications in this or any other particular 
 contribution; and, perhaps, even if all his writings in 
 this sphere were marshalled and collated, there might 
 still appear to be many vacancies and obscurities to 
 perplex a technically trained philosopher. Especially 
 would there be wanting anything like a self-contained 
 metaphysical system; but it must be remembered that 
 Kohler has never at any time set himself the purpose of 
 writing a substitute for Hegel's "Phenomenology of 
 
xxii EDITORIAL PREFACE 
 
 Spirit"; and that his system, so far as it is a system, 
 finds its fundamental premises in the Hegelian doctrine 
 with the elimination of all formal elements. 
 
 Nothing more significant has ever occurred in the his- 
 tory of Philosophy of Law than that its text-book should 
 be written by a man who possesses not only wide and 
 deep knowledge of philosophical speculation, but who 
 combines metaphysical learning with remarkable mas- 
 tery of the law in its historical and positive aspects. 
 The great names in Philosophy of Law heretofore have 
 represented many kinds of scholarship except legal 
 scholarship; and much of the distrust which has pre- 
 vailed to make the way of this study difficult is un- 
 doubtedly explainable on this ground: for what has a 
 jurist to learn about the law from a philosopher? 
 
 Whetlier this work successfully builds up its thesis for 
 the reality of a metaphysic of the law is a question upon 
 which much can and probably will be said ; but that as a 
 unified elaboration of the entire material of legal history, 
 it will make conspicuous the principle of the relativity 
 of the law, and the wonderful teleology of evolution, will 
 be made manifest to any unprejudiced reader whatever 
 his other conclusions. It cannot be expected, however, 
 that the forces of legal nihilism — those who deny every- 
 thing but the coarsest interpretation of the conflicts of 
 social life — will capitulate as an army, to the idealistic 
 groundwork of a system which must admit brutality, 
 egoism, and evil. The perspective of life is too exten- 
 sive, and the forces of historical change are too subtle to 
 be apprehended by those who see only the struggle for 
 the demands of a barren material existence. 
 
 It will not be necessary here to attempt a critical 
 examination of Kohler's position in Philosophy of Law 
 in view of the able discussion of this matter elsewhere in 
 this volume. Attention should, however, be called to 
 
EDITORIAL PREFACE xxiii 
 
 Berolzheimer's "The World's Legal Philosophies" (Mrs. 
 Jastrow's translation, Vol. II of this series, particularly 
 pp. 422-427). It only remains to enumerate some addi- 
 tional facts to complete this biographical note. 
 
 Josef Kohler was born March 9, 1849, at Offenburg, 
 Germany. He received his education at the gymnasia 
 of Offenburg and Rastatt, and the universities of Frei- 
 burg and Heidelberg. He became "Amtsrichter" at 
 Mannheim in 1874; later "Assessor" and "Rat" of the 
 District Court at Mannheim. In 1878 he became pro- 
 fessor of law at Wiirzburg; and in 1888 professor of law 
 at the University of Berlin, which latter appointment he 
 still holds. 
 
 Everything that Kohler has attempted is characterized 
 by breadth of interest and intensity of production. This 
 is shown not only in his own writings, but equally in 
 co-operative labors in which he has vastly stimulated 
 learned efforts of others. What Kohler has done in the 
 direction of influencing others would more than suffice 
 to mark him as a great dynamic personality. We may 
 instance, as examples of this, the following propulsive 
 undertakings: in 1888 he became editor (jointly with 
 Viktor Ring) of "Archiv fiir biirgerliches Recht"; in 
 1903 he became editor of "Berliner Juristischen Ber- 
 trage" ; for many years he has had editorial management 
 of that great repository of historical information, "Zeit- 
 schrift fiir Vergleichende Rechtswissenschaft" ; he is 
 founder of "Zeitschrift fiir Volkerrecht" (now in the 
 7th voume); publisher (jointly with Berolzheimer) of 
 "Archiv fiir Rechts- und Wirtschaftsphilosophie," the 
 leading journal of Philosophy of Law (now in the 7th 
 volume); and publisher of "Archiv fiir Straf recht und 
 Strafprozess." That these are piobably not merely 
 honorary positions may be quickly ascertained on look- 
 ing into these publications; thus, one finds, to take for 
 
xxiv EDITORIAL PREFACE 
 
 example, the last journal, not only that Kohler is a 
 constant contributor of original articles dealing with the 
 most technical aspects of criminal law, but that appa- 
 rently, as to that journal, he finds time somehow to 
 read the great number of publications representing every 
 language which come into the editorial office for review. 
 In a recent number of that journal, it appears that a 
 dozen different book reviews at one time do not exceed 
 his capacity. It is true that these reviews are very 
 much condensed; but that does not explain away the 
 fact of Kohler's breadth of reading. It indicates only 
 that he has surveyed the law so widely and so thoroughly, 
 that he is able to hit upon the central thought of a work 
 under consideration with a quick intelligence, and an 
 authoritative estimate of its scientific value. 
 
 External matters such as titles, and connections with 
 learned societies, we here set down last and of least 
 importance, in dealing with an author to whose merit 
 little if anything can be added from without. Kohler 
 is a Privy Councillor of Justice; honorary president of 
 the International Association of Legal and Economic 
 Philosophy; member of the Royal Institute "voor de 
 Taal-Land- en Volkenkunde van Nederlandsch Indie"; 
 member of "Society Acad^mique Indo-Chinoise" of 
 Paris; member of "Society de Legislation Comparde" of 
 Paris; member of the "Genootschap van Kunsten en 
 Wetenschappen" of Batavia; member of the "Academy 
 of Sciences of the Institute of Bologna" ; honorary mem- 
 ber of "Institute di Storia del Diritto Romano" of the 
 University of Catania; honorary member of the "Greek 
 Philological Society" at Constantinople; member of 
 "Gesellschaft fiir Rheinische Geschichtskunde" at Koln; 
 and member of the "Societies of Arts and Sciences" 
 at Utrecht. The University of Chicago, a number of 
 years ago, in recognition of Kohler's juristic labors, con- 
 ferred on him the degree of LL.D. 
 
INTRODUCTION TO THE TRANSLATED 
 VOLUME 
 
 By Orrin N. Carter 1 
 
 The tendency is growing in recent years to question 
 the soundness of every branch of substantive and adjec- 
 tive law. Whether this tendency will be beneficial or 
 otherwise will depend largely upon the action of the 
 leaders in the legal profession. Doubtless the teachers 
 and writers upon law will have great influence. It is 
 especially fortunate at this time that through this series 
 the great works upon modem legal philosophy are being 
 made easily accessible to all interested in the subject. 
 
 No writer of the last century has written more exten- 
 sively than the author of this book. It may well be 
 doubted whether any writer in modern times has had as 
 wide a knowledge or as sure a grasp of the subject here 
 considered. He possesses not only remarkable learning 
 but extraordinary intellectual powers which peculiarly 
 fit him for a work of this character. No attempt will 
 be made to refer- to his other legal works or to his teach- 
 ing and writings in other departments of literature, that 
 having been so fully and ably covered in the editorial 
 preface. Perhaps this introduction will be as helpful, 
 not only to the casual reader but to the student of this 
 subject, if the writer briefly calls attention to what he 
 considers some of the most striking thoughts of the work. 
 
 "The philosophy of law," Kohler says, "is a branch of 
 philosophy, of that philosophy which deals with man 
 and his culture."^ "The essence of culture" he states 
 
 » Justice of the Supreme Court of the State of Illinois. 
 2 Note 4, Appendix, 329. 
 
xxvi INTRODUCTION 
 
 "in the sense of Philosophy of Law, is the greatest 
 possible development of human knowledge, and the 
 greatest possible development of human control over 
 nature." In another work he gives this definition: 
 "Culture is the development of the powers residing in 
 man to a form expressing the destiny of man." * In this 
 book he states "The totality of humanity's achievements 
 is called culture; and in this culture, it is the part of the 
 law to promote and to vitalize." He uses the word 
 "culture" in the German sense. In that sense "Culture 
 is the control of nature by science and art." ^ The law 
 is not only the end but the means of this culture. The 
 great German philosopher, Hegel, is his model. The 
 reason of Hegel is converted by Kohler in his treatment 
 of the law into culture. I am disposed to agree with 
 one of his reviewers that his "theory of law is more fully 
 developed than his philosophical system."^ Evolution, 
 with him, is the controlling factor in the law. Hence 
 there is no such thing as eternal law. The law which 
 is suitable for one period is not so for another. He 
 urges that we should strive to provide every culture 
 with its corresponding system of law, because there is 
 no fixed permanent law, suitable to all times. He 
 strongly combats the idea of natural law. With him all 
 law is positive, which manifests itself in every people 
 and in every age. His dominant thought is evolution and 
 culture, or as another has said "cultural progression." 
 However much anyone may disagree with his proposition 
 that there is no such thing as natural justice or law, — 
 the same in all centuries and with every people, — one 
 cannot but feel the force of his argument that history 
 shows that law is influenced largely not only by the 
 
 '"Moderne Rechtsprobleme," Sec. 1. 
 'Small, "General Sociology," p. 58. 
 'Appendix, 347. 
 
CARTER xxvii 
 
 thought or spirit of the age — what Kohler calls "psychic 
 life" but also by external circumstances; that its charac- 
 ter in a country where people live on the plains may be 
 different in many particulars from what it is among 
 people who live in the mountains or near the sea ; that a 
 country fitted for commerce needs, and necessarily has, 
 laws differing materially from one that is purely agri- 
 cultural. 
 
 A citizen of America will find it difficult to accept 
 Kohler 's teachings that at certain stages of human cul- 
 ture, human slavery is just. He argues that slavery is 
 not evidence that progress is lacking, but rather shows 
 considerable economic progress; that in periods in 
 which there is no progress no need of slaves is felt ; that 
 slavery is a means of obtaining a division of labor on a 
 large scale. He holds that no one who looks at the 
 matter entirely from the standpoint of human rights 
 will be able to understand the historical development 
 of slavery, for, he says "Human rights are not advan- 
 tageous to every development." The reading of his 
 discussion on this subject will cause some of us to wonder 
 less that the institution of slavery was so strongly advo- 
 cated in portions of our country before the civil war. In 
 connection with his views on slavery it is appropriate 
 to state that his juridical ideal is what some of his 
 critics have designated "as an Hegelian aristocracy;" 
 that law, must be permanently ideal and educative, but 
 cannot draw its inspiration from the masses. 
 
 One of the most satisfactory parts of the book is his 
 discussion as to the purpose of the law to neutralize the 
 consequences of accident or chance. While we cannot 
 remove chance from the world, he insists that we can 
 try to render it less harmful ; that it is a foreign element 
 in evolution and we should so far as possible remove it 
 where it tends to injure us. We do this by insurance 
 
xxviii INTRODUCTION 
 
 agreements of all kinds, thus distributing over society 
 at large the dangers that meet the individual. This 
 doctrine of equalization by the removal of chance he 
 claims is very important in the case where one has injured 
 another by wrong doing. The legal necessity there 
 requires the transferring of the damage from the person 
 who has been injured to the person who has caused the 
 injury. He illustrates this principle in the law of barter 
 when he states that "The backbone of barter is the 
 equalization of value"; that one of the principal means 
 of eliminating chance was the introduction of money, 
 so that each shall have a standard of value in barter and 
 trade. The payment of interest for the use of money or 
 property he classifies also in the philosophy of the law as 
 belonging to the same general principle whereby the law 
 limits the inequalities of chance. "Time" in his evolu- 
 tion "is the stepmother of humanity." It suppresses 
 values that deserve full recognition. He insists that 
 nations that discount the future are optimistic, filled 
 with the joy of production; that chance is an immense 
 factor in the future ; that the oriental nations heretofore 
 by their laws have not guarded against chance and there- 
 fore they have prohibited the taking of interest and 
 transactions involving future things. I am disposed to 
 agree largely with most of his conclusions in his wonder- 
 fully interesting discussion of the history and philosophy 
 of this branch of the law. 
 
 His discussion as to the rights and duties of the indi- 
 vidual and society under the head of "Collectivity and 
 Individualization' ' is well worth reading. He argues that 
 there must be a development of the individual, with the 
 highest possible training of the mental powers, but that 
 humanity can only operate collectively and that there 
 must be a constant alternation between collectivism and 
 individualism in order to make possible the highest 
 
CARTER xxix 
 
 achievements by humanity; that history shows a con- 
 stant tendency towards individualization and again an 
 increasing pressure towards collectivism. He illustrates 
 these principles by a discussion of the law of inheritance. 
 His argument is that on the one hand the individual 
 demands consideration the same as every other individ- 
 ual, while on the other hand social life often demands that 
 one or more individuals be forced into the background. 
 The conclusion seems to follow from this argument that 
 he would believe in the old English law of primogeniture. 
 He says that the philosophical significance of the right 
 of the individual to make a will lies in the increased im- 
 portance of the, individual as opposed to that of the 
 family. He states in some detail the advantages and 
 disadvantages of allowing a person to deal with his 
 property as he desires, insisting that the interests of 
 society demand that the individual should not be per- 
 mitted to make contracts that will bind for any great 
 length of time those that come after. If the laws against 
 perpetuities have any philosophical basis, it is found in 
 this argument. In one place he sums up his argument 
 on this question with the statement that "universal 
 history often requires the individual to be thus sacrificed ; 
 the iron tread of progress tramples thousands under foot." 
 Might it not be more accurate to say that this occurs 
 in spite, not because of, progress? 
 
 Those who are studying the problems as to trusts will 
 find in his discussion on this question much food for 
 thought. While he concedes that the right of contract 
 may be abused in the formation of associations or cor- 
 porations that control commerce, turning it out of its 
 natural channel, he argues that little can be accomplished 
 by direct coercive measures; that the most efficient 
 means of remedying the evils is to permit the individual 
 to withdraw from the combination at any time, and then 
 
XXX INTRODUCTION 
 
 the system will crumble away of itself; that if the 
 attempt is made to perpetuate the system in the form of 
 trusts, individual management being embraced in one 
 great whole, individual interests will again lead to the 
 collapse of such artificial formations. "How impolitic" 
 he exclaims "are all laws that proceed only by pro- 
 hibitions! We must fight human nature with itself!" 
 He insists, however, that partnerships, associations and 
 corporations should not be permitted to be established 
 for too long a time ; that in order to prevent abuses there 
 should be public supervision. 
 
 Space will not permit dwelling on his discussion on the 
 rights of personality, the law of things, the law of obliga- 
 tions, family law, gifts, his views on the philosophy of 
 law as to secrecy and publicity in business affairs, his 
 conclusions on the wisdom of the division of govern- 
 mental powers into executive, legislative, and judicial, 
 or other subjects which are treated by our author most 
 philosophically and with keen analytical power. One or 
 two other topics, however, are of such importance at 
 the present time, that I cannot forego referring briefly 
 to his views thereon. 
 
 In these days, when so many are of the opinion that 
 our criminal law and procedure has been outgrown, we 
 will be well repaid by a thoughtful perusal of his views on 
 that subject. He comments on the fact that in recent 
 years it has been believed possible to enforce criminal 
 law in such a manner as to discard all idea of justice; 
 that this theory is supported by an argument that the 
 offender is only a creature of nature, and is compelled to 
 act according to his natural instincts, therefore punish- 
 ment is absurd, mediaeval and contrary to the spirit of 
 modern times; that the individual is the result of his 
 environment. Our author has no patience with this 
 view of criminal law or criminal justice. He insists 
 
CARTER xxxi 
 
 that such a law is "no longer criminal law at all;" that 
 to follow such a line of argument would be to abolish 
 criminal law rather than develop it; that instead of 
 justice we would have merely its empty form. He lays 
 down the principle that the progress of criminal law 
 should be (1) to distinguish and separate sharply, 
 righteous punishment from all the other consequences 
 of the evil deed ; (2) to take equal care that the misdeed 
 is expiated by the proper punishment, and with this 
 atonement other corrective measures are employed. 
 Punishment, he says, must conform to humanity's need 
 of punishment. 
 
 His treatment of the value of human testimony and 
 the credence to be given to it is most striking. He holds 
 that the means of proof must not be overestimated, and 
 calls attention to the fact that perceptions often produce 
 false impressions ; that testimony is the mere raw material 
 out of which the truth must be constructed. 
 
 In his discussion as to whether justice is realized under 
 the law his conclusion is that legal procedure as a realiza- 
 tion of justice has its disadvantages as well as advan- 
 tages, the chief disadvantage being the unavoidable 
 delay in obtaining justice, which often is almost equiva- 
 lent to a denial of it. He recognizes that in modern law 
 there is a strong effort now being made to reconcile the 
 apparently irreconcilable contradiction of the swift 
 realization of justice, with a just decision after a thorough 
 examination of the questions in controversy. He states 
 that among the attempts being made to equalize delay 
 is that of giving the successful party interest on the 
 amount of the judgment from the commencement of 
 the legal proceedings. He insists that the law must be 
 elastic enough to meet the just requirements of the 
 individual case, while avoiding a conflict with the tech- 
 nically logical results under the general rules of law; 
 
xxxii INTRODUCTION 
 
 that this is not always feasible; that adaptable supple- 
 ness must sometimes give way to a certain coarsening, 
 in the interest of greater facility in handling. Con- 
 sequently the law should be construed, if possible, so 
 that hundreds of disputes can be avoided, and a 
 system of law that inclines in that direction is better 
 than a nicely exact system that constantly involves the 
 people in disputes. A similar line of argument is fol- 
 lowed by a great English constitutional writer who 
 asserts that the legal right of every person is conditioned 
 on the welfare of society; that in practical matters 
 there are conflicting rights, that the important feature 
 of any law is the adjustment of such rights, and the best 
 that can frequently be done is to effect a "rough com- 
 promise between them." * 
 
 Kohler is a leader in the modem school of philosophical 
 writers who are attempting to enforce the teachings of 
 Hegel. He is a pioneer in his writings on comparative 
 legal history and philosophy.' Even though we may not 
 think his doctrines will survive through future centuries, 
 they will assuredly assist every student of comparative 
 philosophy not only in his studies in the history of the 
 subject, but in reaching correct conclusions as to the 
 objects and purposes of law. Contrary to the deductions 
 of the early Greek philosophers, who considered the ruler 
 more important than the law, Kohler pins his faith on 
 the law rather than the executive, the law-maker or 
 the judge. In this he is in accord with the teachings of 
 our fathers, that ours — as stated in many of our con- 
 stitutions and court decisions — is a government of laws, 
 not men. He teaches that the standards in the law 
 should be ethical rather than material. He sums up 
 this doctrine in the closing sentence of his preface to 
 
 ' bicey, "Law and Opinion in England", Appendix," 466. 
 ' Roscoe Pound, 25 Harvard Law Review, p. 155. 
 
CARTER xxxiii 
 
 this volume: "Materialism is dead; the philosophy of 
 Spirit still lives." 
 
 To any student of the law this book is most thought- 
 provoking. It is one of the works from which the reader 
 will be benefited even if he follows Bacon's admonition 
 and only "tastes it" and it also falls within the class of 
 those few "to be chewed and digested." The so-called 
 practical thinkers of today may believe that he deals 
 too much in metaphysics ; that his conclusions are based 
 on his theories rather than upon practical experience; 
 that in this regard he can be fairly criticised the same as 
 his great model, Hegel, of whom it is told that coming 
 from his study one day in 1807 just after finishing his 
 most profound work on the philosophy of history, he 
 was much surprised to find French troops on the streets 
 of his own city, Jena; so far forgetting everything else 
 in his study of the science of government that he was 
 not aware that a great battle had been lost by his country, 
 and that its government had been practically destroyed 
 by Napoleon. We are not prepared, however, to agree 
 fully with those who thus criticise. In the long run, 
 the ideal is often the practical. That is a profound 
 philosophy which holds that nothing is ever settled 
 until it is settled right. The great problems in all 
 statesmanship are never settled right until the efforts 
 of the practical man of affairs and the man of ideals 
 are united in one common purpose. 
 
INTRODUCTION TO THE TRANSLATED 
 
 VOLUME 
 
 By William Caldwell ' 
 
 No volume in this series could better realize the 
 desires and purposes of the Editorial Committee of the 
 Association of American Law Schools than this work 
 of Professor Kohler upon the Philosophy of Law. And 
 to no volume in any modern series could a more deserved 
 welcome be given by the friends of ideas, in the larger 
 and the effective sense of this term. 
 
 It is typical in the best sense of the spirit of the 
 reconstructive nationalism that is at work in the leading 
 countries of the world to-day, and that is the surest and 
 the sanest step to the internationalism of the future. 
 
 The following are the main points of view from which, 
 as the occupant of a more or less representative, ofificial, 
 position, I shall attempt to substantiate the foregoing 
 statements: (1) the distinctive characteristics of Kohler's 
 Philosophy of Law as a book in this Legal Philosophy 
 Series; (2) its chief characteristics from the philosophical 
 point of view; (3) its general modernity in the matter 
 of its spirit, its scholarship, and its affiliations; (4) its 
 peculiar significance and utility to the life and thought, 
 and the general political and social atmosphere, of the 
 United States of America at the present time. 
 
 I. Josef Kohler is of course already known to students 
 of the history of the philosophy of the nineteenth cen- 
 tury as, along with men like Trendelenburg, Ahrens, 
 Schuppe, Lasson, Ihering, a competent representative 
 
 ' Sc. D. (Edinburgh) ; Professor of Logic and Moral Philosophy in 
 McGill University, Montreal; author of "The Philosophy of Schopen- 
 hauer" (1896), "Pragmatism and Idealism" (1913), etc., etc. 
 
xxxvi INTRODUCTION 
 
 of the spirit and of the traditions of philosophy in the 
 region of the philosophy of jurisprudence. It is also 
 known that his sympathies, so far as a general philosophy 
 of things is concerned, are in the main with the teaching 
 of Hegel, the author of the most comprehensive and 
 pretentious system of Idealism that has perhaps ever 
 been invented by the mind of man. I shall immediately 
 speak of the matter of Kohler's relation to Hegel, and 
 of the relative independence of his thought that warrant 
 us in thinking of him as a Neo-Hegelian, although in a 
 different sense of this term than the one to which we 
 are committed when we speak of Anglo-American Neo- 
 Hegelianism, from the Cairds and Green to Bradley 
 and Royce. The fact however that his thought as a 
 philosopher, and as a great legal thinker, is rooted and 
 grounded in the great principles of Idealism as represented 
 not only by Hegel, but by Plato and Aristotle and others, 
 when taken along with the officially recognized esti- 
 mates of his services in the field of positive law, is of 
 itself enough to guarantee the wisdom of this Com- 
 mittee in placing the present work before their country- 
 men, as at least representative of the fundamental 
 thought, and the scholarship, and the expert competence, 
 that must characterize the work of the legal thinkers 
 and teachers of the future in America. 
 
 As one, who, although a layman so far as the techni- 
 calities of the law are concerned, has at least a working 
 knowledge of Law as a subject to be intimately asso- 
 ciated with the studies of the Liberal Arts course in 
 the modern university, I desire to record here that 
 the first thing that impressed me about this work of 
 Kohler's was his obvious, easy, familiarity with the entire 
 range of philosophical speculation about human knowl- 
 edge and about human practice. And then after this, 
 his consummate ability in thinking out the various divi- 
 
CALDWELL xxxvii 
 
 sions and subdivisions, and the various specific topics 
 of law, in the terms not only of "first principles," but 
 of the special considerations of the complex economic 
 and social life of our times. 
 
 In comprehensiveness of spirit, therefore, and in 
 methodological exactitude, and in the matter of the 
 mastery of the minutest detail (without which no one 
 can be an expert in anything) this work on the Philosophy 
 of Law has an undoubtedly educative and representa- 
 tive place in the Legal Philosophy Series. And that 
 this is the case will be discovered by any one who will 
 read, without presuppositions, any of its sections upon 
 any particular legal topic, and then some of the more 
 general pages of Kohler upon such a broad topic as the 
 legal Philosophy of the State, or the Philosophy of Law 
 in particular, in the opening pages. 
 
 If a citation or two be in order here, by way of allow- 
 ing this remarkable production to speak of its own 
 spirit and its own determinative point of view, perhaps 
 we may direct the attention of the reader to the follow- 
 ing: (1) "Law is the standard of conduct which in ' 
 consequence of the inner impulse that urges men toward 
 a reasonable form of life, emanates from the whole, 
 and is forced upon the individual. It is distinguished 
 from morals, customs, and religion as soon as the point 
 is reached at which compulsory standards are separated 
 from the commands that involve social amenity, etc." 
 [Italics mine.] (2) The declaration that "he who is 
 concerned with legislative policy has already half entered 
 the domain of philosophy." And as a single specific 
 instance of the detailed, masterly, and modern treat- 
 ment of special topics that impresses the student either 
 of logic and methodology, or of matters legal and politi- 
 cal, I would name the sections on The Law of Obliga- 
 tions, or the sections on The Law of Federated States. 
 
xxxviii INTRODUCTION 
 
 In either case the reader of to-day will find a consummate 
 and orderly treatment of all the appropriate and inci- 
 dental topics, and in the former case, say, an illumina- 
 tive and socially valuable (legal) discussion of such 
 burning questions as the "contracts" that "oppress the 
 economically weak," the "associations" that "control 
 commerce and turn it out of its natural channel," etc., etc. 
 II. The work shows throughout — in its very in- 
 ception and aim, in its manner and style, in its general 
 conception of the unity of knowledge and of the 
 purpose of the life of humanity — the influence of Hegel. 
 And it shows this influence, not in the sense of an ac- 
 ceptance of Hegel's mistaken "dialectic" of bare concepts 
 and categories as the last word of human wisdom, but 
 in the sense of an acceptance of Hegel's effort as a 
 whole as the last great expression of a spiritual view of 
 life and reality. To Kohler, too, Hegel is the master 
 worker in the realm of mind, or spirit, or Sittlichkeit, 
 the thinker to whom the arrangement and conquest 
 of "material," of difficulties, and prejudices, and com- 
 ' plexities, is the peculiar work of science in any form. 
 He is, therefore, on more grounds than one, quite in 
 line with the recent revival (within the last ten years) 
 of interest, in Germany and Italy, in the Hegelian 
 philosophy, after the long reign of Neo-Kantianism and 
 the mere, formal, theory of Knowledge, with the general 
 fresh interest in Germany, in the sciences pertaining 
 to man and man's ideals — reflected, say, in the two 
 recent philosophical journals, Die Geisteswissenschaften 
 andLogos. "MateriaUsm is dead," proclaims Kohler em- 
 phatically in his earlier pages — a declaration which 
 leads him to proclaim the "culture" of the human spirit, 
 the greatest perfection of man (as an individual and as a 
 member of society) to be the end and aim of law. It is 
 the same conviction, too, along with the philosophy 
 
CALDWELL xxxix 
 
 upon which it reposes, that leads him at once to the 
 rejection of such things as the leveUing influence of 
 Socialism, and the rejection, also, of the view of those 
 who forget that "technic" and "wealth," and the end- 
 less advance of science are, after all, indispensable steps 
 in the evolution of the higher quality of human nature 
 and of social justice. 
 
 Unlike many Hegelians, however, Kohler sees the 
 place of the individual, and of the creative activity and 
 the economic independence of the individual, in culture 
 and progress. He has words of praise for an intuitive 
 thinker like Nietzsche, who is often contemptuously 
 dismissed as a romanticist, or an ego-maniac, by 
 rationalistic and positivistic philosophers. Nor again 
 is philosophy to Kohler a mere reflection upon the past 
 achievements of the human spirit, or upon any organized 
 polity [the Prussian States to Hegel] as the incarnation 
 of the World-Reason, or upon the closed circle of the 
 logic of a perfectly constructed science. It is not true 
 for him that: "The owl of Minerva takes its flight only 
 when the shades of night are falling;" for he is a pro- 
 gressivist and futurist in all respects. The world is 
 still "young" to him, and we are only in the morning 
 of the work of the conquest by man of his environment 
 and of himself. He is as idealistic and Utopian about 
 the future of civilization as are any of the younger 
 peoples of the earth, or any of the believers in the future 
 of science and of knowledge and of effort. "Humanity 
 is destined to a deep knowledge of the world and of the 
 supramundane. It is destined to form and to rule, 
 to form in the sphere of art, to rule over the earth ; and 
 perhaps by virtue of technical science, over other fields 
 of the universe." 
 
 Some of the additional remarks that one feels inclined 
 to make upon this matter of Kohler and his Hegehan 
 
xl INTRODUCTION 
 
 Idealism are the following. He has so assimilated the 
 spirit and the manner of Hegel that his book is a veritable 
 victory of mind over material — an object lesson in 
 methodology and completeness to all future students 
 of the first principles of law. Many of his sentences 
 leave upon the mind the same sense of mastery, and 
 finality, and pregnant wisdom, that we catch in the 
 "Logic" or the "Phenomenology" or the "Philosophy 
 of History," of Hegel. Take this sentence for example: 
 "Material culture must not stray into paths where the 
 mind cannot follow it, where it would grow unreason- 
 able and offend against the principles of moral life in 
 particular; for lack of morality is lack of reason." 
 
 Kohler thinks too in the terms of the recognized 
 categories and points of view of the mental and moral 
 sciences, and his work has, in an eminent sense, the 
 appearance of an ordered whole. He sees clearly the 
 errors of the Hegelian "intellectualism," and he is more 
 truly historical and positive than Hegel. And despite 
 his comparative injustice to Kant and the "Categorical 
 Imperative," he is more truly ethical than Hegel. In- 
 deed the remarkable and all-persuasive ethical character 
 of his book brings his face closer to the sage of Konigs- 
 berg than does the letter of his pages about the mere 
 "subject-object" philosophy mouthed about years ago 
 in England by Coleridge. And lastly — and this is an 
 important point — in his doctrine of the relativity of all 
 law, of its necessary change and adaptation to altering, 
 and to new, conditions, he breaks definitely with the 
 Procrustean "absolutism" of some German and some 
 English Neo-Hegelians, and comes for practical and 
 rational purposes into a desirable relation to the truth of 
 the American philosophy of Pragmatism, ^ and to the 
 
 2 See the chapter upon "Pragmatism as Americanism" in the writer's 
 "Pragmatism and Idealism" — -A. &C. Blaclc, London, Macmillan N Y 
 (1913). 
 
CALDWELL xU 
 
 "experimentalism" and the "philosophy of hypothesis."' 
 of modern science (Mach and Poincar6 as well as James 
 and Dewey). 
 
 As for a word in respect of the comparison of this 
 book upon the Philosophy of Law with similar works in 
 this Legal Philosophy Series, or outside it, it may be 
 said that Kohler, although just as ethical in his ultimate 
 attitude as Lasson, is more intellectual in the right sense 
 of the term, standing for the need of rational compre- 
 hension in the realm of ethical reform, for the idea in 
 fact of the danger of ethical and social reform without 
 comprehension of "end" and "purpose" and without 
 system, or without fundamental truth to human nature. 
 His work, again, is a valuable supplement to the fine book 
 of Berolzheimer in the series, because Berolzheimer is in 
 the main historical in his treatment, while he [Kohler] 
 is systematic, exemplifying the results or the first 
 principles, of all legal history. It is hardly to be wondered 
 at that Kohler as a finished philosopher, as a man who 
 (like Aristotle) always seeks for the meaning of "devel- 
 opment" in the light of the "end" or the "purpose" it 
 seems to subserve, should think himself beyond the 
 mere beginning of the philosophy of law represented in 
 the otherwise epoch-marldng work of Ihering. 
 
 IIL The thorough "modernity" of the work of 
 Kohler (in spirit, scholarship, and affiliations) is amply 
 exemplified by such characteristics as the following: 
 
 (1) the up-to-date character of his psychology, his 
 treatment of the "dispositions," impulses, motives, 
 intentions, purposes, the "springs" and roots of the 
 conduct of men in the business of life (matters of the 
 utmost importance in several departments of law) ; 
 
 (2) the thoroughly sociological character of all his work, 
 along with the fact that he is not like too many writers 
 
 •See ibid, chapter III. 
 
xlii INTRODUCTION 
 
 of the day, entirely submerged and swamped by the 
 sociological trend or bias; (3) the accompanying recog- 
 nition of the relation of the legal activities of men to 
 ethical, and religious, traditions and beliefs and convic- 
 tions; (4) the perfect methodology and "logic" of his 
 work, to which reference has already been made; (5) its 
 opposition to the mere temporal demands of the "masses" ; 
 and (6) lastly (and again) its progressive, optimistic 
 spirit, its faith in "achievement and aspiration" and in 
 the great "cultural mission of humanity." 
 
 IV. It is impossible, I think, to terminate this intro- 
 duction without referring to the great advantage to the 
 United States of all the far reaching knowledge of Ger- 
 man and continental thought represented by the work of 
 all these translators and editors in this Series. As I 
 have attempted to express it elsewhere,* the American 
 scholar of to-day in the best universities does not attempt 
 the work of exposition or creation without an exhaustive 
 and codified knowledge of what has been done in his 
 subject in other countries. The very greatest things 
 therefore, in the way of constructive work, are to be 
 expected for the United States and for the world as a 
 result of all this preliminary thought and research, in 
 respect of the right kind of foundation and beginning. 
 
 'In the work already referred to. 
 
AUTHOR'S PREFACE 
 
 My effort, here, is to present, as a system, philosophical 
 ideas which have become fixed in the maturity of thirty 
 years of study of ancient and modem philosophies, and 
 an investigation of the laws of various peoples. I do 
 this with all the more satisfaction, for the reason that 
 the lectures at this University on Legal Philosophy and 
 Comparative Law have been for me always subjects of 
 special interest and attachment. 
 
 A situation that thirty years ago was hardly to be 
 anticipated has now been realized: the inclination in 
 favor of Legal Philosophy has grown anew; and the 
 legal philosophical consciousness of our jurists has 
 again started to develop. 
 
 That a pure historicalness boots nothing, that the 
 simple cleaving to the practical debases our juristic 
 thinking, that mere construction of positive law does not 
 suffice — all this has become very plain in the last 
 decade. The many problems of legislative policy alone 
 must have demonstrated that positivism in the law is 
 without value; and he who is concerned with legislative 
 policy, Jias already half entered the domain of philoso- 
 phy; for, whoever unites legislative policy with history 
 is already aware that every age has its own necessities 
 to which its mission must correspond. Study of the 
 legal missions of the various periods of time, and investi- 
 gation of ways and means by which they may be satis- 
 fied, lead at once to the problems of cultural and legal 
 evolution; and clearly show the luxuriance of ideas 
 which struggle to expression in the life of the peoples, 
 as product of the prodigious psychical labor which 
 humanity as a whole m able to accomplish. 
 
xliv AUTHOR'S PREFACE 
 
 A unity of spirit rules mankind and evolution forces 
 its way out of universal substance; thus have the 
 greatest thinkers of all ages spoken, from the Vedanta 
 philosophers, and the Persian Sufis, up to Averroes, 
 Eckhart, and Hegel. Legal Philosophy attains its high 
 consecration in the thought of this unity ; and the illus- 
 trious ideas of Hegel, with proper correction, have again, 
 in the course of events, come into the foreground, after 
 philosophy, and therefore, also. Philosophy of Law, had 
 slumbered for two decades. 
 
 Materialism is dead; the philosophy of Spirit still 
 lives. 
 
 JOSEF KOHLER. 
 
 Berlin, October, 1908. 
 
Philosophy of Law 
 
PHILOSOPHY OF LAW 
 
 CHAPTER I 
 
 THE PHILOSOPHY OF LAW AND ITS 
 SIGNIFICANCE 
 
 SECTION I 
 
 INTRODUCTION 
 
 l.^The Philosophy of Law is a branch of philosophy, 
 of that philosophy which deals with man and his cul- 
 ture^ Its purpose, like that of every philosophy, is to 
 examine what underlies the realm of phenomena; and 
 to explain to us whether there are powers, and what 
 they are, behind what we have perceived with our senses, 
 and what our reason has given us to understand. Direct 
 perception by the senses, and its treatment lie within 
 the province of the science of experience. But the ques- 
 tion whether, after the science of experience has done 
 its part, there is still a deeper significance in the results, 
 belongs to philosophy. 
 
 2. More is to be said of this in dealing with philosophy 
 as an auxiliary science. But, above all, it must be ex- 
 plained here that "the Philosophy of Law, as a branch of 
 the philosophy of man, is concerned with searching out 
 what underlies human existence, and what is the deeper 
 significance of human activity?" 
 
4 PHILOSOPHY OF LAW [Ch. I 
 
 3. \Human activity is cultural activity^ Man's task 
 is to create and develop culture, to obtain permanent 
 cultural values, thus producing a new abundance of 
 forms which shall be as a second creation, in juxtaposi- 
 tion to divine creation. 
 
 4. [To expound the deeper significance of this creation 
 of culture is the task of metaphysical scienceTJ To 
 examine more closely, into it is an important under- 
 taking that would carry us beyond the confines of the 
 philosophy of culture and man, into the sphere of uni- 
 versal world culture. All that we can do here simply is 
 to assume as granted that the promotion of culture is 
 one oijihe tasks, or rather, the task of humanity. 
 
 5. lOnly so much must be borrowed from the universal 
 domain of world philosophy: culture is constantly 
 developing, and humanity must guard the existing cul- 
 tural values and continue to create new ones. /^i^ulture 
 must move forward^^ Its progress, however, is not a 
 simple advance; rather, its development proceeds in 
 such manner that the seeds of the new are already 
 present in what exists, and, as the one grows and the 
 other decays, new values are constantly created out of 
 the old.-// 
 
 6. ^In the evolution of culture, the law has its place; 
 for human civilization is only conceivable if there is a 
 system among mankind that assigns each man his post 
 and sets him his task, and which takes care that existing 
 values are protected and the creation of new ones fur- 
 thered^ 
 
 _7c C5"his (system of) law cannot remain unaltered. 
 It must adapt itself to a constantly advancing culture 
 and be so formed that conformably to changing cultural 
 demands it promotes rather than hampers and oppresses 
 iy[ Thus every culture has its definite postulates of 
 law, and it is the duty of society, from time to time, to 
 shape the law according to these requirements. 
 
§ 1 ] INTRODUCTION 5 
 
 -^r^ence, there is no eternal lawf The law that is 
 suitable for one period is not so for another : we can only 
 strive to provide every culture with its corresponding 
 system of law. What is good for one would mean ruin 
 to another. '■'■ 
 
 9. [The law, as it should be to correspond with the 
 culture that exists, is not always in accordance with the 
 existing law, for in many instances the persons or bodies 
 in authority do not perceive what is needed; certain 
 requirements remain unconsidered, or the proper means 
 are not used to meet them. In such cases endeavors in 
 two directions are justified: the effort to have the law 
 altered to conform to the cultural needs, and the effort to 
 find an interpretation of the law that will, so far as pos- 
 sible, harmonize with the demands of culturelT 
 
 10. Up to within a hundred years ago, people talked 
 of a law of nature and believed that there was a fixed 
 permanent law suitable to all times which merely had 
 not always been realized. This view is connected with 
 the further opinion that the culture of humanity, called 
 into life by God, is, once for all, complete, so that, at 
 the most, only trivial changes can be necessary ; accord- 
 ingly, the law should be shaped to correspond to the 
 divine commandments. In other words, people assumed 
 that the world had already reached the final aim of cul- 
 ture, and, as this culture was once and forever perfect, 
 so, too, would be the law that conformed to it. 
 
 Yet this Natural Law has a long history: it did not 
 thrive in the times of the real law of nature but in that 
 of the Scholasticism which joined hands with Aristotle, 
 who had long lapsed into oblivion, to be re-discovered 
 later. 
 
6 PHILOSOPHY OF LAW [Ch. I 
 
 EXCURSUS 
 
 In its beginnings, Natural Law goes back to our 
 lord and master, Aristotle, and to the seventh chapter 
 of the fifth book of his remarkable "Nicomachsean 
 Ethics." The so-callecl Natural Law of Hugo Grotius 
 and his successors is nothing but vain repetition of the 
 ideas that the Scholastics produced in the midst of a 
 stormy battle of minds. In place of the richness and 
 life which we find in the Scholastics, after the period of 
 Hugo Grotius we see nothing but stagnation and 
 strained effort; and whereas, in the Middle Ages, Natural 
 Law protected the nations against the caprice of princes 
 and papal power, defended German from Roman law, 
 and upheld the demands of what was reasonable in the 
 face of what had became historical, since Hugo Grotius 
 it has scarcely done more than perform the admittedly 
 important service of forming the basis of international 
 law. It was not vitalized until, in connection with the 
 contractual theory of the State (Staatsvertrag) , the 
 idea of the rights of man arose, not for the first time, 
 by the way; for the Scholastics had given utterance 
 to similar ideas long before Jean Jacques Rousseau, 
 and long before the American colonists and the French 
 Revolutionists tossed the doctrine of the rights of man 
 like a burning torch into the masses of the people. 
 
 The fundamental idea of Natural Law thus began 
 with Aristotle, and continued up through the Stoa 
 into Roman law, and into the Middle Ages. Aristotle 
 was headed in the right direction. He assumed that 
 even though the law be susceptible of constant change, 
 it must yet contain an inner uniform power that seeks 
 to turn us in the direction of welfare. But where this 
 course lay, and what the relation of this constancy is 
 to the mobility of history — these points were the cause 
 of a tremendous struggle in the Middle Ages. 
 
§1] EXCURSUS 7 
 
 Scholasticism it is true, owing to its starting points, 
 could only arrive at a partially correct solution, for it 
 adhered to the acceptation of the Bible and to the invio- 
 lability of the tenets of the faith ; hence it could never 
 attain to a free and impartial coasideration of constantly 
 developing culture, nor appreciate at its real value this 
 striving for culture except within the limits set up by 
 religious dogma. It could not contrast one religion or 
 system of morality with another, and comprehend 
 both as different planes of culture and relatively justi- 
 fied expressions of the human mind, but was obliged 
 to accept what the Church taught; and even though 
 it might be believed that dogmas sometimes developed 
 more and more as the age advanced, an historical 
 interpretation of all human modes of thought was never- 
 theless impossible. 
 
 TAristotle was correct in thinking that the common 
 inner nerve of the different systems of law is directed 
 toward adapting the law as a whole to the civilization 
 of the present, thus contributing to the advance of culture 
 and the welfare of himianity/^ Even Aristotle, then, 
 recognized that the law cannot be arbitrarily fixed, for 
 the established law may run directly counter to the 
 demands of the law of reason ; hence the law must strive 
 to serve the development of culture as it stands, and, 
 as civilization is ever changing, the law must change 
 with it. Only in as far as the different civilizations 
 contain something that is common to them all, should 
 the law be uniform in its elements, and when we seek to 
 approach a cultural ideal, certain propositions may be 
 estabUshed as the leading principles of that ideal. It 
 must, however, be constantly borne in mind that a 
 cultural ideal is always only relative, and with every 
 change in culture, a new ideal will confront us. A sys- 
 tem of law within the pale of Mohammedan culture 
 
8 PHILOSOPHY OF LAW [Ch. I 
 
 could never be the same as the law of the Christian or 
 Buddhistic world. The Scholastics were obliged to set 
 up certain tenets of the Christian canonical culture as 
 absolute principles, and if they kicked over the traces, 
 they had to reckon with the ban of the Church. Hence, 
 it is comprehensible that the character of their dis- 
 cussions often seems very strange to us, and we should 
 never forget that beneath their reserved utterances 
 the deepest thoughts were sometimes concealed unable 
 to find a way to the light. They were occupied with 
 two questions in particular, questions that never con- 
 cern us now: why, in the Bible, God himself ordered 
 things to be done that were contrary to the ten com- 
 mandments, and whether it were ever permissible to 
 depart from the ten commandments; that is to say for 
 instance, whether under certain circumstances a man 
 might not kill, particularly in self-defense. The first 
 group of cases, for example, that God commanded 
 Abraham to sacrifice his son, we regard in an entirely 
 different light, merely as a reference to the custom — 
 common to all Semitic peoples — of sacrificing their 
 children. (Compare Augustinus, "Civitas Dei," I, 21; 
 XVI, 32.) The second group we explain today by 
 saying that the rules of law and morals are never abso- 
 lute but always embrace a number of ifs and buts, as, 
 for instance, the exceptional right to kill in self-defense. 
 
 But these discussions had a still deeper, political 
 significance. If God had made exceptions in certain 
 cases why should not his representative, the Pope, do 
 the same? And why not his anointed, the king? And 
 so a new course was set, and imperial and papal power 
 was increased. 
 
 But here the Dominicans created a salutary barrier. 
 Albertus Magnus and Thomas Aquinas contended that 
 the law rested on eternal principles, and no deviation 
 
§1] EXCURSUS 9 
 
 was permissible except in certain directions, though 
 what these directions were was still the subject of much 
 doubt. 
 
 The Franciscans opposed this view, and especially 
 Schopenhauer's predecessor, the great voluntarist. Duns 
 Scotus, whose importance in the history of the world 
 has recently been recognized. He was the apostle of the 
 Will who had seen deeper into its workings than any- 
 one before him. He perceived that the Will is not so 
 much the servant of the mind as its lord, and so to him, 
 as to Schopenhauer, God was more will than intelligence, 
 and the law valid not because it is reasonable but be- 
 cause it is the will of God. This opened the flood-gates 
 and the curialists were able to increase the power of 
 the Pope immeasurably. Thus did Duns Scotus break 
 the way and skepticism as regards reasonable Natural 
 Law spread in all directions. More than ever before, 
 the relativity of the law was recognized. Duns Scotus 
 even went so far as to advocate polygamy when great 
 losses of men endangered the existence of society. 
 
 But later the pace was slackened. Occam especially 
 tolled the death-knell of imperialism while the Schism 
 and the Council of Constance led to a decrease in the 
 papal power and bowed it beneath the decree of the 
 bishops. 
 
 Averroes, who as a sufistic pantheist was not bound by 
 ecclesiastical dogma, was the most correct in his ideas. 
 
 Between the two stood the jurists like, for instance, 
 the great Bartolus and Baldus. To them the relativity 
 of the law and its connection with culture was a vital 
 question; otherwise they would not have been able to 
 adapt the Roman law to Germanic conditions. But 
 here, too, the development ran to seed; Bartolus, Bal- 
 dus, and Albericus de Rosate were followed by small 
 minds whose pettifoggery was just as aggravating as 
 
10 PHILOSOPHY OF LAW [Ch. I 
 
 the pettifoggery of the nineteenth century, because they 
 lacked the vitalizing connection with philosophy. 
 
 When, at the time that the power of the Netherlands 
 was rising rapidly, Hugo Grotius joined hands with the 
 Scholastics; he represented the intellectualismand inflexi- 
 bility of Natural Law, in a way such as had never been 
 taught either by Albertus Magnus or Thomas Aquinas. 
 Under his manipulation Natural Law was no longer 
 the resilient law that adapted itself to culture and fur- 
 thered its advance ; it was no longer the vitalizing force 
 that permeates everything: he and his successors repre- 
 sented it to be a motionless cloud that hung like an 
 incubus over life and smothered progress. And Wolff's 
 Philosophy of Law which dominated the time of Frederick 
 the Great is one of the most sterile, pedantic, and 
 wretched efforts that can be found in the whole history 
 of mankind. 
 
 At the beginning. Natural Law may have had signi- 
 ficance as a protection against arbitrary rule, but this 
 it soon lost, at least in Germany and France, and became 
 instead the hobby of well-meaning absolutism which 
 undertook to maintain Natural Law by setting its foot 
 on the neck of the nation and trying to force it to be 
 good, just, and happy. The theory of the contractual 
 origin of the State (Staatsvertrag) , too — as if the 
 State had been formed by agreement of the individual 
 members — a theory that had become a dogma since 
 Hugo Grotius, was modeled by the great Hobbes into a 
 shield and defense of the princely aristocracy of the 
 Stuarts until the revolutionary minds in France bi-oke 
 loose, and Rousseau with his theory of the contrat social 
 unfurled the red banner of rebellion. 
 
 This brings us to the threshold of the modem Phil- 
 osophy of Law. [After the historical school of law under 
 Savigny had demolished rigid Natural Law, and Hegel 
 
SI] EXCURSUS 11 
 
 had taught the idea of evolution, we might have hoped 
 that a new period of growth in the PHlosophy of Law 
 would set in. But this was not the caseX The collapse 
 developed by the powerful sequence of ideas of Hegel 
 and Schelling brought a vast retrograde movement in 
 German thought. Great ideas were replaced by hair- 
 splitting discussions of petty details, and the elucidation 
 of some passage in the Praetorian edict was considered of 
 greater importance than an examination of the formative 
 principles of law. A phenomenal work like Hegel's 
 "Rechtsphilosophie" was followed by amateurish plati- 
 tudes like Ihering's "Zweck im Recht." The lofty 
 thoughts of men like Bartolus and Voet, which prepared 
 the way for a reconciliation between the needs of the 
 present and legislation, gave place to a work like Wind- 
 scheid's "Pandekten," the leading idea of which was 
 that the sense of justice is not a source of law and must 
 therefore bow dumbly to legislation, so that the laws 
 themselves became implacable tyrants. The philosophic 
 jurist was gagged and bound; it was considered anti- 
 quated and inelegant to speak of the Philosophy of Law 
 at all. 
 
 All this has changed. In place of pettifoggery the 
 science of comparative law stepped in, uniting all details 
 in a world-embracing whole. Philosophy of Law attach- 
 ing itself to Hegel has been revived as Neo-Hegelianism 
 which sifted out what was antiquated, and, in close 
 touch with the universal study of law, introduced anew 
 into this study the doctrine of evolution. One of the 
 first, however, to recognize the value of the science of 
 comparative law was not a jurist, but a philosopher 
 whose like, since Hegel, the world has not seen — 
 Nietzsche. 
 
12 PHILOSOPHY OF LAW [Ch. I 
 
 SECTION II 
 PHILOSOPHY AND THE PHILOSOPHY OF LAW 
 
 L<;;^^As the philosophy of mankind, the Philosophy of 
 Law must be based on the world ; for only as a part of 
 the world and as a lever of the world-process can man's 
 significance be comprehended and his activity judged^ 
 At the same time it is universal philosophy that gives 
 us the possibility of understanding the meaning of evo- 
 lution and thus makes clear what this evolution has to 
 do in human life. 
 
 2. Primarily the theory of the validity of knowledge 
 comes under consideration, that is, the question of the 
 relation between subject and object, and tlie question 
 whether our ideas of the world are based in reality on a 
 world, and how this reality is placed in respect to our 
 perceptions. This is the tremendous question of critical 
 realism which, already touched on in the ancient world, 
 was later raised by such scholars as Tommaso Campanella, 
 further discussed by the great Scotch skeptics and finally 
 pressed to a certain conclusion by Kant, a conclusion in 
 the sense that the problem was thenceforward more 
 sharply defined, not in the sense that Kant found its 
 correct solution. The assumption that it is altogether 
 impossible to penetrate into the th'ing-in-itself, so that 
 we are thrown back into the region of our own ideas, 
 rests on the mistaken dualism that was bequeathed by 
 Kant. This dualism, with its constant skepticism, and its 
 "Ignoramus" as regards the outside world, has long since 
 been left behind, and with it the supposition that time 
 and space are based only on our conceptions and are 
 added by our minds. 
 
§2] PHILOSOPHY 13 
 
 Far rather, we must say that the ego and the 
 non-ego belong to one great world-whole, and that 
 consequently agreement must exist between them, and 
 especially that time and extension, as our mind has 
 perceived them for aeons, must correspond to our percep- 
 tions of time and space as the human mind and even the 
 beings that preceded man have received this permanent 
 impression from one generation to another. 
 
 But if this be so, if we are to assume such an agree- 
 ment, then we can gladly enter upon an examination 
 of the world by leaping across the chasm that seems 
 to divide the ego from the external world; and having 
 once done that, we can continue, by means of our rea- 
 son, to construct the meaning of the world, and with 
 the laws of our thought go back to a deeper, more valid 
 foundation. 
 
 3. The whole dualism mentioned above is so mon- 
 strous and unstable that it immediately collapsed before 
 the onslaught of energetic thinkers. Fichte and Schel- 
 ling sought to unseat it, and Hegel completely demol" 
 ishedit ("Philosophy of Identity"). Of course theegois 
 only a single offshoot of the great universe and when we 
 regard the latter we do indeed place ourselves in opposi- 
 tion to it for a moment, but we do so as a part of the 
 whole and this attitude must vanish at once from our 
 mind as soon as the process of contemplation is at an 
 end. My remarks in the "Archiv fiir Rechtsphiloso- 
 phie," I, p. 488, apply to this "Identitatsphilosophie." 
 
 "If the ego, apprehends the non-ego, that is, the ex- 
 ternal world about it, as an object, then the external 
 world becomes unified by perception with our own ego, 
 and thereby forms an entity independent but homogene- 
 ous to our own ego.". . . "For the world as the object 
 of perception is intrinsically equal to the ego inasmuch 
 as the latter is also the object of perception, and thence 
 
14 PHILOSOPHY OF LAW [Ch. I 
 
 results of itself the consciousness that the world and the 
 ego must exist outside of us and yet be connected with 
 our ego." 
 
 Hegel, as always, expresses it best ("Phenomenology 
 of Spirit," p. 161) : "I distinguish myself from my- 
 self ; and therein I am immediately aware that this factor 
 distinguished from me is not distinguished. I, the self- 
 same being, thrust myself away from myself, but this 
 which is distinguished, which is set up as unlike me, is 
 immediately on its being distinguished no distinction 
 for me." 
 
 4. The chief error in Kant's philosophy lies in this, 
 that the difference between subject and object is exag- 
 gerated until it becomes monstrous. According to 
 Kant's theory of knowledge the subject, on the one side, 
 stands all alone in the auditorium of the theatre, and 
 before it is the stage where the performance goes on, 
 signifying the world. Between these two things there 
 should be some connection, but far from that: what we 
 perceive is only a phenomenon, a consequence of phe- 
 nomena, and all that is behind the phenomenon is hidden 
 from us forever; for all our mental powers can be con- 
 centrated only on the phenomenon. We can make 
 combinations of phenomena, but the management of the 
 stage with all its machinery is permanently concealed 
 from us. 
 
 This whole representation is ill-chosen for this reason, 
 if for no other: that it makes such a difference between 
 the pitiable ego and the whole world, that a vast chasm 
 separates them, that it is scarcely worth while to go to 
 so much trouble for the sake of one individual! But 
 how is it with the tremendous crowd of other egos that 
 also gaze into the world? To the first ego they too are, 
 of course, a part of the world, and what he sees of them 
 likewise is merely phenomenon, while the thing-in-itself 
 
§ 2 ] PHILOSOPHY 15 
 
 also, as regards them, is enveloped in fog. In addition, 
 the ego itself is ego only in as far as it perceives itself, 
 while the body with all its pain and suffering is also 
 merely a phenomenon, and actually is also behind the 
 clouds that surround the thing-in-itself . And, after all, 
 even the ego itself is surely our ego only in as far as it is 
 thesubject; as soon as we regard ourown self as an object, 
 it too dives into the thing-in-itself and we behold only a 
 phenomenon. We have a real ego and a phenomenon-ego. 
 5. The idea of the thing-in-itself is appropriate in 
 this, that naturally every reflection, every effect on sub- 
 jectivity can only be so understood that the thing-in- 
 itself does not enter into the subject, but only makes an 
 impression; and it is this impression that we see as the 
 image of the world. Thus exact similarity can never, of 
 course, exist between the impression and the world, any 
 more than it can between the form and the image 
 that is cast in it. Nevertheless it must be reasonably 
 possible not indeed to give a duplicate of the form 
 but still to say in how far our impression agrees with 
 it, and to what extent subjective elements enter into 
 this impression. And our reason is capable of doing 
 this, for it can comprehend our organs and their activi- 
 ties, and hence also understand what the effect is on 
 them when an impression is received from outside. 
 This is especially the case because these organs can 
 experience the most different impressions from which 
 the unchanging original determination and attitude 
 of subjectivity can be derived that confront the objec- 
 tive world. In other beings, too, we find similar organs 
 and can ascertain how they operate and how they are 
 influenced from outside by the form. Beyond that, of 
 course, we are not able to go ; nor is it necessary to do 
 so, for this knowledge is complete. No being can say 
 what the image of the universe is, if in thought the being 
 
16 PHILOSOPHY OF LAW [Ch.I 
 
 that observes it is omitted ; for in that case any image at 
 all immediately becomes impossible. We can only say: 
 in the universe there is a plenitude of different objectivi- 
 ties that operate on our subjectivity which represents the 
 slate on which the images appear, but which is so con- 
 stituted that we can deduct what is subjective. We 
 know, for instance, when we see red and yellow that the 
 character of the color is an addition made by our organs 
 of sight and our reason ; but just so, it is certain that the 
 difference in the color must be based on a difference in 
 the object of which we know nothing more than that 
 vibrations of the ether have something to do with it. 
 That to another eye and another mind, the colors may 
 appear different, is clear, but that does not alter the 
 matter. 
 
 In the same way, we know that a difference under- 
 lies the objects that we see simultaneously and those 
 that we see successively, and thence we derive the 
 abstraction: space and time. But that we cannot con- 
 ceive of anything spaceless and timeless is not because 
 space and time are a creation of our own minds, but 
 because in all our concepts we are dependent on what 
 the world offers us; and though we may connect, may 
 add, or leave out in thought, yet, we can never change 
 the whole nature of anything; just as it is impossible 
 for us to imagine an object in another color than those 
 which we know (at most, in such a way that another 
 combination or gradation is introduced). That some- 
 thing else must underlie the concept of space and time 
 is* certain. But that is the case with all objectivities; 
 for they are the moulds of the impressions that we 
 experience. At all events, there can be no doubt that 
 to the time and space difference in us, there must be 
 a corresponding time and space difference in the world. 
 
 This is quite wonderfully expressed by Hegel, "Phe- 
 nomenology of Spirit," p. 138: 
 
S 2 ] PHILOSOPHY 17 
 
 "Certainly there is no knowledge to be had of this 
 inner world, as we have it here; not, however, owing. 
 to reason being too short-sighted, or limited, or whatever 
 you care to call it (on this point there is as yet nothing 
 known at this stage; we have not gone deep enough 
 for that yet), but on account simply of the nature of 
 the case; because in the void there is nothing known, 
 or putting it from the point of view of the other side, 
 because its very characteristic Ues in being beyond 
 consciousness." 
 
 And in the same work, page 140: 
 
 "We distort the proper meaning of this, if we take 
 it to mean that the supersensible is therfore the sensible 
 world, or the world as it is, for immediate sense-cer- 
 tainty and perception. For, on the contrary, appear- 
 ance is just not the world of sense-knowledge and 
 perception as positively being, but this world as super- 
 seded or established in truth as an inner world. It is 
 often said that the supersensible is not appearance; 
 but by appearance is thereby meant not appearance, but 
 rather the sensible world taken as itself real actuality." 
 
 6. If we stand in the world in this way, then it is 
 also comprehensible that the results of our thought 
 must agree with the world to the extent that the factors 
 in the objective world which make impressions, must 
 be as our thought grasps them, assuming that we start 
 from the right premises and make no errors in our con- 
 clusions. This is not perhaps a "pre-established har- 
 mony," not chance; rather it is based on the fact that 
 we are a part of the great whole with which we confront 
 ourselves only at times to disappear again in the whole. 
 During the time that it confronts us the whole still 
 continues to have its effect. It is a piece of machinery 
 of which we form a part and in which the results of the 
 motions of the machinery must correspond to one another ; 
 
WHO! 
 
 18 PHILOSOPHY OF LAW [Ch. I 
 
 that is to say, if the machinery is in order and no patho- 
 logical development has set in. Thus, of itself, the 
 correctness of the axioms in mathematics is explained; 
 the agreement of the law of causality within us and 
 outside of us is explained, and Kant's whole list of 
 categories. Here, too, it is not necessary that our minds 
 should scramble about fruitlessly.in front of the scenes; 
 rather it is possible for us if not indeed to look behind 
 them, yet, by means of our intellect, to ascertain what 
 goes on there, or at least to find out in what way the 
 factors that cause impressions play behind the scenes 
 whose various activities correspond to the various 
 ects on the surface. 
 
 7. The whole assertion that it is not possible for 
 our power of judgment to penetrate into the region of the 
 metaphysical rests on the erroneous assumption that 
 the metaphysical is something so totally different from 
 us that we have no points of contact with it. But that 
 is not so. Even though the metaphysical be not acces- 
 sible to our perceptions, yet it is so to our thought. If 
 it is impossible for us to comprehend anything eternal 
 in our view, yet it is possible for us to put something 
 eternal into mathematics and to work with it. And 
 in this lies the whole kernel of metaphysics. It is neces- 
 sary to exceed the bounds of time and space, and to con- 
 struct something beyond their limits; and this we can 
 comprehend in our ideas making it the subject of our 
 thought. The assumption that the table of categories 
 reaches only as far as our perceptions is purely arbitrary : 
 it is true only in as far as a category presupposes time 
 and space, which is not the case, for instance, with 
 modality. It is pure arbitrariness to assert that the 
 principle of identity and of contradiction is attested 
 only in the circle of the perceptions. 
 
 8. Accordingly, Kant's whole system of thought, 
 
§ 2 ] PHILOSOPHY 19 
 
 tremendous as are the efforts that have been spent on 
 it, is a maze. It is a mental gymnastic exercise with 
 the most monstrous movements and distortions in 
 which the straight is bent crooked and the crooked 
 straight. But just because it is a maze, it is futile to 
 follow it, at least beyond the point where it becomes 
 clear that it leads nowhere. It is an off-shoot of the 
 Scotch thought, that extends from Hume and Berkeley 
 up to Kant, a maze that had to be made and on which 
 Kant lavished the highest powers of his gifted mind 
 that still showed clearly traces of Scotch descent. 
 
 A return to Kant could only be preached by an age 
 of philosophic barrenness that was not in a position 
 to adapt Hegel's philosophy to the period, and therefore 
 thought it more advisable to edify itself with the acro- 
 batic arts of Kant's mental gymnastics. Wherever a 
 real theatre is lacking, people delight in acrobatic per- 
 formances. It is comprehensible that Zeller, for in- 
 stance, should call people back to Kant, but less so 
 that so many should follow him. 
 
 9. This destruction of Kant's dualism was brought 
 about unnoticeably through the identity philosophy, 
 which, starting with Descartes, was carried on by 
 Schelling and brought to an admirable completion by 
 Hegel, the main idea of which is that the difference 
 between subject and object is only a relative one, and 
 that therefore there can be no question of such a con- 
 frontation of the ego and the external world. They 
 can stand opposite each other only for a moment, and 
 essentially the activity in the external world and the 
 activity of our own ego are the same, and each of us is 
 "a breath of eternity" (ein Hauch der Ewigkeit). 
 
 Hegel developed this idea still further by calling the 
 world process progressive logical thought with a constant 
 thesis and antithesis and their reconciliation, so that 
 
20 PHILOSOPHY OF LAW [Ch. I 
 
 in this way a continual progression takes place from 
 one to the other; a progression in the development of 
 the great cosmos as well as in humanity. Thus history 
 becomes a magnificent growth out of which new ideas 
 constantly spring which gradually settle and clear, 
 thus establishing the connection between the past and 
 the future in a splendid manner. And this is done not 
 so that past and future stand in a neutral relation to 
 each other, but so that the future is formed by the prog- 
 ress that has its rise in the past. Thus unified life arises 
 in the world. Everything germinates, sends forth shoots, 
 and strives toward farther and more distant aims; while 
 formerly facts alone ruled, the Idea now holds sway. 
 
 This tremendous achievement of Hegel's reconciled 
 the difference between being and non-being on which 
 the earlier philosophy of the Eleatics came to grief, 
 through the principle of becoming {Werden) ; for be- 
 coming is the mediation between being and non-being 
 and what is becoming, is; as the old sinks into the 
 depths of the past, the banner of the future already 
 flutters before us: this has become the basis of all the 
 mental sciences, and above all, of our philosophic educa- 
 tion. That it should have been thought possible to 
 ignore Hegel and to return to Kant only bears witness 
 to the great philosophic decline of the last decades of the 
 nineteenth century. The philosophy of the twentieth 
 century must take Hegel for its starting point and Hegel's 
 fundamental idea, evolution, is the scientific principle 
 of all mental science, of our whole history, and of every- 
 thing that lives and moves in our human culture; it 
 is the fountain of youth for all our scientific thought. 
 
 At many points, it is true, we must deviate from 
 Hegel and proceed with a reconstruction; for it is not 
 true that the development of the history of the world 
 is so logical and that everything goes forward in three- 
 
5 2 ] PHILOSOPHY 21 
 
 part time. On the contrary, we fihd a great deal that 
 is illogical and unrhymed; so much so, that what is 
 magnificent sometimes perishes never to be seen again 
 and that times of strongly pronounced decline, patho- 
 logical periods in the life of mankind, appear which are 
 not in line with evolution , but are rather directly opposed 
 to the course of our development, (p. 39 (4) .) In other 
 ways, too, human progress by no means always corres- 
 ponds to the development of our thought; for reason 
 and brutality operate side by side with wisdom and 
 stability. Moreover we must also take into considera- 
 tion that the ways traveled by the history of the world 
 ' are extraordinarily manifold and have thousands 
 and thousands of ramifications. It follows that : 
 
 a. The logic of the world's history is mixed with 
 much that is illogical, and it is not possible so to con- 
 strue the course of progress that everything unfolds 
 in accordance with a definite logical spirit. Side by 
 side with reason, stands its opposite, and the greatness 
 of the world's history is attested simply by this, that in 
 the final development, it is reason that triumphs. 
 
 b. The great multifariousness in evolution makes 
 it impossible to set up certain types of development for 
 all cases by which universal history may be judged. 
 Any process that has for its object the deduction of the 
 future from the past by logical inference would be entirely 
 inadmissible. History must be studied in detail. If on 
 a journey, for instance, we know the starting point and 
 the destination, this gives us no knowledge of the 
 course that lies between them; and so it is with the 
 development of the world. Even if the advance appears 
 sure, yet the way is altogether uncertain, and history 
 shows us a charming, often too, it is true, an affecting, 
 tragic diversity. This makes the study of history more 
 complicated, but also infinitely more attractive, for 
 
22 PHILOSOPHY OF LAW [Ch. i 
 
 evolution shows itself in an unmeasured multifarious- 
 ness. Just as it would be foolish for anyone to attempt 
 to trace the numberless varieties of the rose back to 
 the original type, so, too, it would be a mistake to 
 base the development of the world's history on one and 
 the same logical principle. 
 
 10. The excess of Hegel's logicism (Logizismus) was 
 opposed by Schopenhauer, who declared the blind will 
 to be the determinative power; and especially by 
 Nietzsche, who went so far as to assert that more unrea- 
 son than reason ruled the world. The truth of the 
 matter is clear from the explanation we have just given. 
 
 The view, however, that accepts Hegel's philosophy 
 of identity and doctrine of evolution on the one side and, 
 on the other, rejects his dialectics, (that is, the theory 
 of a thoroughly logical, rhythmical growth,) and which, 
 in particular, refuses to pigeonhole the world's history 
 on the basis of the three-part time development, is 
 Neo-Hegelianism which forms our point of departure. 
 
 Hegel's development of Idea becomes, as regards man, 
 the development of culture; we assume that culture 
 constantly progresses, not in regular succession, it is 
 true, but with interruptions and with many limitations 
 and irregularities. Culture, however, becomes the 
 mental security of the nations. It is the mighty aim 
 toward which we strive, the culture of knowledge on 
 the one hand, and that of new production and new 
 activity on the other ; which again is divided into esthetic 
 culture, and the culture that controls nature To 
 know everything, to be able to do everything, and thus 
 to master nature — that is the final aim of the develop- 
 ment of culture, and to have grasped this is the charac- 
 teristic feature of Neo-Hegelianism. 
 
 1 1 . Only since Hegel have we known the true nature 
 of history. Everything that was produced in history 
 
§ 2 ] PHILOSOPHY 23 
 
 before that time, or that was produced later by those 
 who rejected Hegel's doctrines, was merely a fruitless 
 collecting of details that always ended in shallow, 
 trifling pettiness. Herder, who dimly anticipated Hegel's 
 doctrine of evolution, was an exception, and Goethe too, 
 in whose all-embracing mind Hegel's ideas also sounded. 
 In the greatest work of genius that the nineteenth 
 century has produced, in the "Phenomenology of Spirit," 
 Hegel explains this significance of history: "The goal, 
 which is absolute knowledge, or Spirit knowing itself as 
 Spirit, finds its pathway in the recollection of spiritual 
 forms as they are in themselves, and as they accom- 
 plish the organization of their spiritual kingdom. Their 
 conservation, looked at from the side of their free phe- 
 nomenal existence in the sphere of contingency, is his- 
 tory ; looked at from the side of their conceptually com- 
 prehended organization, it is the science of phenomenal 
 knowledge, of the ways in which knowledge appears. 
 Both together, or history comprehended conceptually, 
 form at once the recollection, and the golgotha of Abso- 
 lute Spirit, the reality, the truth, the certainty of its 
 throne, without which it were lifeless, solitary and 
 alone. Only 
 
 "This chalice of God's plenitude 
 Yields foaming His infinitude." 
 
 And his beautiful thoughts on ancient art are also 
 true of historical knowledge in general : 
 
 "The statues set up are now corpses in stone, whence 
 the animating soul has flown ; while the hymns of praise 
 are words from which all belief has gone. The tables of 
 the gods are bereft of spiritual food and drink, and 
 from his games and festivals, man no more receives the 
 joyful sense of his unity with the Divine Being. The 
 works of the muse lack the force and energy of the 
 
24 PHILOSOPHY OF LAW [Ch. I 
 
 Spirit which derived the certainty and assurance of itself 
 just from the crushing ruin of gods and men. They are 
 themselves now just what they are for us — beautiful 
 fruit broken off the tree; a kindly fate has passed on 
 those works to us, as a maiden might offer such fruit off 
 a tree. It is not their actual life as they exist, that is 
 given us, not the tree that bore them, not the earth 
 and the elements, which constituted their substance, 
 nor the climate that determined their constitutive char- 
 acter, nor the change of seasons which controlled the 
 process of their growth. So, too, it is not their living 
 world that fate preserves and gives us with those works 
 of ancient art, not the spring and summer of that ethical 
 life in which they bloomed and ripened, but the veiled 
 remembrance alone of all this reality. Our action, there- 
 fore, when we enjoy them is not that of worship, through 
 which our conscious life might attain its complete truth 
 and be satisfied to the full; our action is external; it 
 consists in wiping off some drop of rain or speck of dust 
 from these fruits, and in place of the inner elements 
 composing the reality of the ethical life, a reality that 
 environed, created, and inspired these works, we erect 
 in prolix detail the scaffolding of the dead elements of 
 their outward existence — language, historical circum- 
 stances, etc. All this we do not in order to enter into 
 their very life, but only to represent them ideally or pic- 
 torially (vorzustellen) within ourselves. But just as the 
 maiden who hands us the plucked fruits is more than 
 the nature which presented them in the first instance — 
 the nature which provided all their detailed conditions 
 and elements, tree, air, light and so on — since in a 
 higher way she gathers all this together into the light of 
 her self-conscious eye, and her gesture in offering the 
 gifts; so, too, the Spirit of the fate which presents us 
 with those works of art is more than the ethical life 
 
§ 2 1 PHILOSOPHY 
 
 -© 
 
 realized in that nation. For it is the inwardizing in us, 
 in the form of conscious memory (Er-innerung) , of the 
 Spirit which in them was manifested in an outward, 
 external way; — it is the Spirit of the tragic fate which 
 collects all those individual gods and attributes of the 
 substance into the one Pantheon, into the Spirit which 
 is itself conscious of itself as Spirit." 
 
 Has anyone ever grasped universal history with 
 deepef comprehension? 
 
 (-^2. As has already been mentioned, the period fol- 
 lowing Hegel was one of tremendous decline for the 
 Philosophy of Law. The short-sightedness that has led 
 people to believe it possible to build up a Philosophy of 
 Law without philosophy took a bitter revenge. Natural 
 Law came again to the fore in a new form, and led to a 
 sort of positivistic Philosophy of Law. Natural Law could 
 not of course be identified with positive law, but from 
 different systems of law and various postulates of law a 
 concoction was put together that was then called the 
 Philosophy of Law. Books like those by Ahrens, Krause, 
 Roder, are not even worth while enumerating; they are 
 the products of utter banality and poverty of ideas; 
 similarly barren are the writings of Merkel who tried to 
 construct a universal doctrine of law out of a scanty 
 knowledge of several legal systems, and, by his sham 
 reconciliations, contributed to the decay of juristic 
 thought. 
 
 Merely for the sake of completeness two other experi- 
 menters must be mentioned; first, Ihering, who, in his 
 "Zweck im Recht," believed that he had discovered the 
 great idea that the • law must have a purpose and an aim ; 
 though as to the nature of this purpose he did not get 
 beyond a few stammering remarks, yet his superficial 
 brilliancy easily dazzled the loftily wise juristic public. 
 As a matter of f^ct, purpose in the law is connected with 
 
26 PHILOSOPHY OF LAW [Ch. I 
 
 the whole development of legal culture, and that can 
 only be understood on the basis of Hegel's doctrine of 
 evolution, and from it alone can the ends of the law be 
 deduced : they are cultural aims, and the nature of cul- 
 ture is made up, as was explained above, of what Hegel 
 endeavored to present in his conceptual dialectics. 
 Ihering's whole attempt came to grief on the rocks of a 
 deplorable dilettanteism ; only an unphilosophical mind 
 like that of Ihering himself could find satisfaction in it. 
 
 Another attempt, by Stammler, takes Kant as its 
 point of departure, and proceeds as if Hegel had not 
 existed at all. Stammler recognizes that, in contrast 
 to the old Natural Law, the law must change, and that 
 therefore all discussion of a perfect or complete law 
 must be in a purely formal sense. This formal law, he 
 seeks to represent as a system of justice through law, 
 and this again he deduces from various criteria. These 
 criteria originate in the magnificent growth of advancing 
 human culture; but he believes them to be found in the 
 definite requirements of individual or social life that 
 exist once for all, and in this he is entirely in error. 
 Nothing could be more preposterous, for instance, than 
 to say: at no stage of human culture has slavery been 
 just. This is the result of the retrograde movement 
 from the historical basis of Hegel back to the non- 
 historical exposition of Natural Law of Kant. This 
 whole school of thought, including Neo-Kantianism, may 
 well be buried and forgotten. 
 
 13. The salvation of the Philosophy of Law can only 
 be accomplished by starting with the reconstruction of 
 Hegel's doctrine and interpreting his dbctrine of evolu- 
 tion to mean that mankind constantly progresses in 
 culture in the sense that permanent cultural values are 
 produced, and that man becomes more and more god- 
 like in knowledge and mastery of the e3,rth. Only when 
 
§2] PHILOSOPHY 27 
 
 based on this foundation can the requirements of the 
 law be recognized as the requirements of the advancing 
 culture which the law is to serve, and only in this way 
 can the true aim of the law be known for what it is. 
 
 14. Lasson's Philosophy of Law alone gives us cause 
 for rejoicing. He, the comprehensive thinker, the keen 
 logician, was the only one to perceive that the welfare 
 of philosophy was dependent on an intimate relation to 
 Hegel ; and when, building upon Hegel, with a foundation 
 of later historical material, we do so also in the hope 
 that we are acting in agreement with him. 
 
 15. The Philosophy of Law, as indeed philosophy in 
 general, has recently been much furthered, thanks to 
 the great mind of Nietzsche, who subjected the prime 
 cultural questions anew to searching thought and estab- 
 lished some of them on a new basis. 
 
28 DEVELOPMENT OF CULTURE [Ch.II 
 
 CHAPTER II 
 
 THE DEVELOPMENT OF CULTURE 
 
 SECTION III 
 LOGICAL AND ILLOGICAL ELEMENTS 
 
 L It has already been said that what is logical in his- 
 tory is mingled with much that is illogical. These 
 illogical elements form the realm of blind chance which 
 prevents development in accordance with fixed, stable 
 principles, and constantly runs athwart human effort. 
 Hence it is necessary, for the progress of culture, that 
 chance be conquered, in nature in the first place; but 
 in law, too, its conquest is a phenomenon peculiar to 
 culture, in this: that although the loss of values brought 
 about by chance cannot be averted, yet it can be altered 
 according to special principles and distributed in such a 
 way that its effect is neutralized. 
 
 2. To the illogical elements must be reckoned first 
 distance in time and space. The advance of culture 
 seeks to overcome space and time: the limitations of the 
 former, by making it possible for persons to come together 
 with no, regard] for the obstacles that space interposes. 
 So, too, should time be overcome, but in this direction 
 little success can be achieved, for time is much more 
 relentless towards human power than is space. Yet 
 even in this respect, the legal order has been able, where 
 natural forces have failed, to effect an equivalent by 
 regarding future possessions as already legally in exist- 
 ence, and thus making them objects of commerce. In 
 former times, it was considered sinful and presumptuous 
 to meddle in the realm of the future ; but humanity has 
 
§31 LOGICAL AND ILLOGICAL ELEMENTS 29 
 
 outgrown such a belief, and by bringing matters of the 
 future into the affairs of today, not only have a large 
 number of new institutions been created, but also a 
 great many advantages have been obtained, and the 
 nations of the world have been enriched. 
 
 3. Illogical elements are also seen in the influence of 
 the nature that surrounds us. The development of cul- 
 ture, and hence also of law, is largely conditioned by 
 external circumstances, above all by the character of 
 the country where people live and by their environ- 
 ment. Whether they live on the plains, or in the moun- 
 tains, near rivers, or near the sea, is of determinative 
 importance for the advance of culture; and equally 
 whether they live in fertile, or in barren lands, for on 
 this depends whether their products will be plentiful or 
 scanty. Above all, however, the character of the land 
 occupied exerts a vast influence on the possibility, facil- 
 ity, and quickness of social and commercial intercourse. 
 The sea, especially, has been of decisive importance to 
 those peoples that used it for the development of trade 
 and thus gained those material and intellectual advan- 
 tages that are connected with commerce. 
 
 It has even been asserted, that the whole variation in 
 the history of mankind can be traced back to these natural 
 foundations, but this statement is a great exaggeration. 
 
 It is possible to overcome these factors only in part; 
 and, indeed, effort should be directed to this end only in 
 so far as elements that hamper culture are concerned; 
 for instance, by making commerce difficult, or by facili- 
 tating sudden attacks. The surmounting of these diffi- 
 culties seldom lies within the province of the law, but is 
 accomplished rather by other cultural measures, so that 
 we need not concern ourselves further with them here. 
 
 4. The chance of life is another illogical element. 
 We cannot remove it from the world, but we can try to 
 
30 DEVELOPMENT OF CULTURE [ Ch. II 
 
 render it more or less harmless. It is a foreign element 
 in evolution and should lie in our power to such an 
 extent that we can remove it where it injures us, and 
 retain it only where it is useful, or at least neutral. 
 
 Operations of the legal order that aim at neutralizing 
 chance are innumerable. They are particularly popular 
 today, and our whole life is encompassed by insurance 
 agreements which axe intended to distribute the dangers 
 that meet the individual, over society at large, and in 
 this way to dull their edge. Also, in other respects, 
 there is much in our legal life that aims at adjustment. 
 This always takes the form of removing the conse- 
 quences of chance for the sake of an improved situation 
 of the whole. To this kind of activity belong especially 
 all those institutions that seek by legal means to restrict 
 unjustified enrichment, and to bring about regulation 
 that corresponds to cultural values. 
 
 Such institutions were long ago known to maritime law, 
 where, by means of the legal device of the general aver- 
 age, a distribution of the losses among all those involved 
 was accomplished; and today bankruptcy has a similar 
 object in which the chance of quicker or slower legal 
 action is not decisive, effort rather being directed towards 
 equalizing the position of all the creditors. 
 
 5. Finally, to the illogical elements belongs the 
 necessity — due to the incompleteness of human under- 
 standing — of sharp definitions and easily recognized 
 boundaries. The law cannot follow all the fine points 
 that arise in the logical development of the require- 
 ments of culture ; for the law is made for men and for 
 human intercourse, and must therefore be practically 
 suited to such intercourse. Hence, it must not consist, 
 for instance, of pure gold, but must be so constituted 
 that it can be used in intercourse among men, who, for 
 the most part, know the law only in the rough. Even 
 
§3] LOGICAL AND ILLOGICAL ELEMENTS 31 
 
 he who knows the law intimately will often encounter 
 great difficulties in judging, because the essential con- 
 ditions are known to him only in part, and because he 
 lacks the means of entering more deeply into the actual 
 circumstances. A system of law that always involves the 
 minutest detail could not be of service to mankind, 
 because it could never be realized; and a system of 
 law that cannot be put into actual practice is contrary 
 to the demands of culture. Hence, in this respect, 
 culture must cut into its own flesh, and do without 
 the realization of certain requirements in order to accom- 
 plish all that is humanly possible. Here, too, the prin- 
 ciple applies that the art of living consists in choosing 
 the lesser evil. 
 
 It follows, that the law will create a series of insti- 
 tutions which will meet demands only by and large, but 
 which are so constituted that they are comprehensible 
 to the average man. What is lost in detail and harmony 
 will then be completely balanced by the fact that the 
 law sets certain definite limitations. 
 
 (a) Statutes of limitation and rights acquired by 
 long possession are based on the fundamental idea 
 that time has a certain effect on human conditions, not, 
 of course, time in itself, but the many processes of cul- 
 ture that take place in time; so that, after the lapse 
 of some time, the law must undergo alterations, if it is 
 to correspond to the new conditions that cultural pro- 
 cesses have produced. But the moment when this 
 should be undertaken is properly to be determined in 
 each individual case, according to all the peculiarities 
 of the system of law, in every period, and in every 
 situation. It is, however, very difficult to determine 
 such a matter in an individual case, and the result 
 would be endless uncertainty that would have to be 
 removed by intricate juristic inquiry. That is not feasible, 
 
32 DEVELOPMENT OF CULTURE [ Ch. II 
 
 and hence: the law sets a certain period in the rough, 
 on the assumption that it will correspond fairly well to 
 the regular course of events; and thus it results that, 
 though in individual cases the measure may be greater 
 or less, an average or standard is established which is 
 of benefit in all cases. For this reason, too, it follows that 
 rights in things of intellectual creation [such as patents 
 of invention] must lapse and disappear after a time, 
 because such things are intended for the whole of soci ty, 
 and must serve humanity at large; wherefore they can 
 be withdrawn from it only for a time, that is, for the 
 period in which they have not yet become a universal 
 cultural possession. In this instance, too, it is a ques- 
 tion of the individual case when this change has taken 
 place, but, none the less, the action of the law in estab- 
 lishing a fixed standard is beneficial. 
 
 (b) To the same group belong all those cases in 
 which the law allots a certain consequence to publicity, 
 so that what appears publicly in a definite manner is 
 binding as against everyone, whereas otherwise it is not 
 recognized at all or only to a limited extent. There- 
 fore we have public books, public registers, public 
 notices and announcements; and what conforms to 
 them is accepted more or less as legal and binding; 
 for, in this manner, business activities are provided 
 with security. Thence, also, arise those cases, 
 where one result is produced when one acts in accord- 
 ance with a public record, ignorant of the reality, 
 and another result follows, when he is cognizant of the 
 reality. 
 
 Here, too, belongs the legal treatment of the pur- 
 chase of movable goods under conditions that justify 
 everyone in believing the property to be that of the 
 seller; as, for instance, purchases made in the market, 
 in public places of sale, etc., where it may be assumed 
 
53] LOGICAL AND ILLOGICAL ELEMENTS 33 
 
 that the dealings are honest and that publicity excludes 
 all underhand methods and tricks.^ 
 
 This incompleteness of knowledge can be partly 
 overcome with better resources of getting information; 
 the law may restore a right after the expiration of the 
 limitation term, or it may declare that the party claim- 
 ing the benefit of the limitation term must not take 
 advantage of the expired term if he has acted deceit- 
 fully or dishonestly in regard to it. An example is seen 
 in the treatment of the five-year term in the action of 
 nullity in patent law. 
 
 6. Half way between the logical and the illogical and 
 uniting them, in that both psychic life and the facts of 
 nature are subject to the same power, stands the prin- 
 ciple of causality. It applies in law inasmuch as : 
 
 (a) The phenomena of law succeed one another 
 according to certain laws of causation, from which it 
 also follows that time finds its application; for causa- 
 tion without time is unthinkable, and that again leads 
 to what I have called the illogical element in the law; 
 for time, as we have seen above, is something that 
 lies outside of our logic, that forces itself upon our 
 minds from without, and this is shown just in its rela- 
 tion to causation. For this reason, if anyone disposes 
 of a thing in two ways, the first must precede the sec- 
 ond; and if, as in the Mahabbarata, the prince first 
 pretends himself to be a slave, and then enslaves his 
 wife, the latter act cannot hold; because, after once 
 having become a slave himself, he is no longer in a 
 position to dispose of his wife. Not so, however, if the 
 latter act had preceded the former by a few seconds: a 
 fortune may hang on a couple of moments. If two per- 
 sons who are related to each other die at the same time, 
 a minute's difference may decide the fate of millions. 
 
 1 Compare the further explanation in the chapter on the technic of the 
 law. 
 
34 DEVELOPMENT OF CULTURE [Ch. II 
 
 (6) The principle of causality applies also to this 
 extent that the operations of the human mind follow 
 the law of causation when the free will does not inter- 
 vene; that is, when the effect on the mind of others 
 conforms to the ordinary principle of sufficient cause. 
 
 (c) Causation also comes under consideration in 
 as far as activity in the external world is of importance 
 to the law. In private law this is not so much the 
 case; for there action is, in the main, a declaration of 
 will, thus having a logical and mental basis. But 
 there are also instances where external facts enter into 
 consideration; thus, when one man aids another, but 
 especially, in illegal acts. Criminal law, however, is pre- 
 eminently the province in which causation is important, 
 for a person is responsible for a result with which he is 
 connected according to the laws of causation. One 
 fact, however, is frequently overlooked. One may be 
 connected with a result not only as its cause, but also 
 by fixing the condition by means of which the cause 
 takes effect. Presupposing that this has been done in 
 a guilty way, for one has not actually given rise to the 
 cause thereby but has made it effective and removed the 
 obstacles, this does not indeed suffice to stamp the one 
 who performs the deed as the one who causes it, but it 
 is enough to make him accountable for the revealed 
 causation; for it is right that a man should be respon- 
 sible for his wrong, even though he use only natural 
 causation for his own ends. This makes it appear as 
 if the distinction between cause and condition might 
 be omitted altogether, as in criminal law generally, only 
 the guilty deed comes under consideration; but in 
 criminal law, as well as in unlawful acts in civil law, 
 there are cases in which a man's liability is not only 
 for the wrong, but for the result. In such cases only 
 the causation comes under consideration; for it is 
 
§3] LOGICAL AND ILLOGICAL ELEMENTS 35 
 
 proper that when a man is liable beyond his wrong, 
 this responsibility should be confined to the realm of the 
 strictly causal. 
 
 As to the rest, the distinction between cause and con- 
 dition is what I have already made clear: the condition 
 has to do only with being or non-being, causation with 
 the way and manner of the result, and this rests on the 
 fact that it is the cause that operates. The view that 
 there is nothing operative, but only a sequence from 
 one to the other, so that is is impossible to distinguish 
 between cause and condition, cuts away the ground 
 from under the whole conception of causes, and con- 
 tradicts the fundamental principle of our theory of 
 perception, according to which the categories of our mind 
 correspond to categories in the external world, the 
 category of causation no less than the category of time 
 and space. I have already given a fuller explanation 
 elsewhere and can refer to that. 
 
 The following, however, is essential : it is possible to 
 trace back the concept of causation more or less, for 
 there is always a chain of cause-momenta in which one 
 link joins the next. Which of these links is to be re- 
 garded as the determinative one depends upon the way 
 we look at it. The physicist will fix upon one, the jurist 
 on another. The latter will naturally trace everything 
 back to the man who, acting in accordance with or in 
 opposition to the law, is accountable for the consequences. 
 All things that lie between the man and the consequence 
 are the links of the chain ; what lies before the man is, 
 according to the juridical view, very rarely of impor- 
 tance, at the most only in as far as it serves to charac- 
 terize, juridically or morally, the conduct of the human 
 personality. If, for instance, someone throws a fire- 
 brand into a barrel of gunpowder, the juridically momen- 
 tous cause is the throwing of the firebrand ; the physicist, 
 
36 DEVELOPMENT OF CULTURE [ Ch. II 
 
 on the contrary, considers the natural processes that 
 lead to the explosion. The psychologist may be con- 
 cerned with the feelings and emotions that preceded 
 the act; they are of importance to the jurist only in as 
 far as they aid him in justly fixing the degree of guilt. 
 But if a juristic act is involved, the law has nothing to 
 do with what preceded it; the moving factors in acts 
 with which the law is concerned are ordinarily without 
 importance. 
 
 SECTION IV 
 
 EVOLUTION AND PSYCHIC LIFE 
 
 1. General Remarks 
 
 L The culture of an age is connected with the soul 
 and the spirit of the people. To fathom them is the 
 task of folk-psychology which, it must be admitted, 
 still needs to be greatly developed. It is certain that, 
 just as in an individual, different moods follow one 
 another owing to psychic necessity, and owing also to 
 laws that are as yet partly unknown, the same process 
 goes on in nations. This is shown too by what is said 
 below of pathological conditions, but even when the 
 mental equilibrium is maintained, the most extraordinary 
 psychic conditions of excitement appear which influence 
 culture as a whole and thus also the sphere of law. 
 
 2. Such psychic conditions are: 
 
 (a) Religious fanaticism, which leads to an under- 
 valuation of material things and to a congregationism 
 { Kongregationismus) and communism based on com- 
 plete severance from all earthly endeavors. These moods 
 rest on the predominance of religious emotional life in 
 which religious conceptions, and especially the belief 
 in a herafter, play a large part. 
 
§4] EVOLUTION AND PSYCHIC LIFE 37 
 
 (b) Following a period of pronounced egoism there 
 frequently comes an altruistic reaction when people 
 devote themselves to the welfare of others, found society 
 after society, league after league, and seek not only to 
 raise up the man who is less favorably situated, but 
 actually to indulge him. 
 
 (c) There are periods in which the inner life of men 
 is entirely devoted to feelings and emotions and in con- 
 sequence their power of resolution becomes paralyzed, 
 and the life that finds expression in deeds is almost 
 completely suppressed ; there are times when hatred and 
 revenge grow numb, but this situation is balanced by 
 the loss in initiative and power of resistance. Those are 
 the days of sentiment and sentimentality. An excellent 
 example is the latter half of the eighteenth century in 
 which sympathy for criminals, for example, infanticides 
 etc., was common. Such impulses have appeared in our 
 day, from time to time, but not to the same extent; for 
 it is a peculiarity in the development of nations, that 
 when certain moods have once dominated a people they 
 may indeed occur again spasmodically, but rarely con- 
 trol a whole period a second time. 
 
 (d) There are times when critical reasoning out- 
 weighs all else, 'when people seek to get to the bottom 
 of everything, will not accept the authority of the past, 
 and question every institution as to its usefulness. These 
 periods are frequently destructive, for many things are 
 rooted in the nature of ma,i without it being possible 
 for our reason to trace them back to their fundamental 
 ideas; and, besides, the connection with the past in 
 itself is important in order that culture may not be 
 shallowly built on sand ; for only when founded on his- 
 tory can it take form and shape. This, however, is 
 often overlooked and people try to reject whatever 
 reason cannot explain. 
 
38 DEVELOPMENT OF CULTURE [ Ch. II 
 
 The chief example of such a time is the period of 
 enlightenment (Aufkldrung) at the end of the eighteenth 
 century which had an immeasurably clarifying effect as 
 regards the historical. 
 
 But, on the other hand, such periods are necessary, 
 because frequently historical fragments remain that 
 must be removed before development can go on. To 
 be sure, such things die of themselves, as soon as the 
 nation is strong enough, but theirs is often a very slow 
 death; and antiquated institutions often droop and 
 vegetate a long time without finding justification for 
 their existence in the needs of evolution. Hence, it is 
 well if now and then a merciless hand cuts them down. 
 
 3. It is easy to understand how the law is influenced 
 in all these respects. Since we cannot get on without 
 earthly possessions, congregational and communal life 
 leads to an over development of communal ownership, 
 and property in mortua manu, and all kinds of endow- 
 ments and testamentary dispositions will thrive under it. 
 The increase of altruistic societies leads to undertakings in 
 the interests of third persons, to the raising up of special 
 social officials, and to further elaboration of the law in its 
 relation to such societies. Whenever an institution gains 
 in importance and appears in a dominant form, a great 
 variety of new questions arise and many complications 
 appear in new guise. Sentimentality made itself felt, 
 however, especially in criminal law and led to a complete 
 remodeling of the penal system. Finally, the effect of 
 the "clearing up" periods is usually a critical one through- 
 out the whole sphere of law, and wherever such periods 
 find antiquated ideas they actively oppose them. This 
 may, of course, also happen in the realm of criminal law, 
 for there ancient abuses are especially prominent. 
 Especially in the enlightenment period of the eighteenth 
 century, sentimentality and enlightenment combined 
 
§4] EVOLUTION AND PSYCHIC LIFE 39 
 
 with each other in a curious fashion. The former 
 aroused a strong feeHng of dissatisfaction with what 
 existed, the latter grasped the defects of its logical foun- 
 dation, and in this way they advanced together against 
 the past. 
 
 4. Psychic life may give rise to pathological condi- 
 tions. There are aberrations in the development of 
 culture, necessary aberrations. Conditions often are 
 produced which do not harmonize with cultural problems 
 and which cannot be said to be justified and appropriate 
 from their standpoint. The development of culture 
 must proceed through the human soul : this is a point that 
 has received altogether too little attention. And the 
 folk-soul is like the individual soul: it develops rhyth- 
 mically, it needs its aberrations, its mad pranks, its 
 irritabilities, it cannot always keep on the straight path. 
 Humanity becomes surfeited, overtired, and turns to 
 certain things that are directly opposed to evolution, 
 hence also to culture. Not till hecatombs have been 
 sacrificed to the god of nonsense is humanity satisfied 
 and ready to turn again to reason. Just as it is neces- 
 sary in art that, from time to time, pathological condi- 
 tions arise when men rush into all possible uglinesses, 
 confusions, pettinesses, and produce things that are a 
 mockery of all artistic feeling, not only in the opinion of 
 a certain age, but of all ages; so, too, in the development of 
 the law there are periods of frightful confusion and crass 
 senselessness. The persecution of witches, the misuse of 
 torture, are conceivable only as the expression of human 
 savagery and craziness. The duel without a religious 
 background can only be traced back to misguided 
 caste feeling; terrible fury directed against foreigners, 
 and much else, is of the same nature. The exaggera- 
 tion of justified endeavors becomes almost blameless, 
 when religious fervor leads to persecution, the love 
 
40 DEVELOPMENT OF CULTURE [Ch. II 
 
 of liberty to revolutions, the desire for order to reactions, 
 and when, by these things, onslaughts are made on 
 mankind. 
 
 When the history of the law considers these things it 
 must regard them as pathological conditions that appear 
 at times when necessary disease takes hold of humanity; 
 so that only after it has been shaken by fever can recov- 
 ery begin, and the refreshed mind be ready for new 
 achievements. 
 
 The law, too, has felt this keenly; for it is just the 
 jurists who have been not only the supporters of human 
 progress, but also the ringleaders in human follies and 
 mad pranks. In witch trials, tortures, revolutions, and 
 reactions, jurists and the law have always taken a prin- 
 cipal part; and the banner of the law has led mankind 
 on to its wildest orgies and most cruel persecutions. 
 
 The impulses of development that sway humanity 
 must pass through human psychic life, and only in this 
 way can they attain what the human soul is capable of 
 accomplishing. But this soul must, from time to time, 
 grow ill, that it may grow well again. Whoever does 
 not look at the history of law from this side cannot be 
 just to it, and either will have to leave these human 
 errings uncomprehended, or impute a false meaning to 
 them. Both courses prevent the comprehension of the 
 world's development. In this respect almost nothing has 
 been accomplished with the history of law until now, 
 because it has been treated with a total lack of philosophy. 
 
 5. The Philosophy of Law, too, must take these 
 moods of culture into consideration as necessary expres- 
 sions of the folk-soul; it must recognize that without 
 them humanity cannot develop; for just as the individual 
 develops only according to the principles of psychic life 
 (and as this psychic life, rooted in the whole nervous 
 system of the man, must have certain twists) so is it too 
 
§4] EVOLUTION AND PSYCHIC LIFE 41 
 
 in the life of peoples; and the philosopher of law must 
 not simply pass such occurrences by. However exces- 
 sive they may be, he must grasp them as necessary to 
 the development of history, bearing in mind the fact 
 that Hegel's idea of a perfect logic in evolution is errone- 
 ous and will not bear the nearer scrutiny of history. 
 
 Nevertheless, the far-sighted legislator can mitigate 
 much here; even if the whole mood must be struggled 
 through to the end, yet the philosopher of life, in the 
 life of nations as in the individual's life, can soften the 
 pathological tendencies and help out in one way or 
 another in order either to further the development or 
 to ameliorate the pain and suffering that it involves. 
 
 That will be the correct attitude of the legislator if 
 he is also a philosopher of law, and the tremendous prac- 
 tical importance of the Philosophy of Law lies in that it 
 makes use of the great experiences of the past, and, at 
 the same time, of philosophical knowledge of present 
 world history. 
 
 6. . The restraining element of psychic life is contained 
 in that life itself. The latter is not so constituted, that 
 what is obviously reasonable immediately triumphs; 
 rather, what exists often continues to stand, and often 
 reason gains the upper hand only after a long struggle. 
 This is the principle of preservation corresponding to 
 the principle of inertia in nature. 
 
 This principle, it is true, will often hinder evolution 
 and hold humanity back; but, on the other hand, it is 
 of great benefit in preventing evolutionary degeneration, 
 and the mixing of what is salutary in appearance only 
 with what is actually so in culture, which often does 
 great harm to the whole. But, apart from this, it is 
 advantageous to evolution, if a certain kernel is pre- 
 served as long as possible in order to keep the connec- 
 tion, to restrain excessive passion by the memory of 
 
42 DEVELOPMENT OF CULTURE [ Ch. II 
 
 the ancients and our ancestors, and, especially, to keep 
 alive the idea that the individual must obey existing 
 laws whether he considers them reasonable or unrea- 
 sonable. Moreover, this restraining kernel often pro- 
 duces strong cohesion among the people, and operates 
 to stay tendencies favoring dismemberment. 
 
 This is the standpoint from which this cultural phe- 
 nomenon must be regarded. We must know that preser- 
 vation and holding fast are salutary in the history of 
 humanity whether the old is good or not. 
 
 Sometimes, however, preservation is carried to the 
 length of senselessness and throws back a people that 
 will not adapt itself to new situations; and in this way 
 a nation that has stood in the first rank becomes insig- 
 nificant, and loses its self-consciousness and the power 
 to produce culture. 
 
 7. In this connection, it is an old experience that 
 religious life is more conservative than secular life. This 
 is partly because the former is less rational than the 
 latter; that is, it rests on certain rules that lie outside 
 of the mind's perception and which, because this per- 
 ception cannot reach them, are less influenced by the 
 progress of intellectual activity. We do not believe 
 because we consider faith rational, but because faith is 
 something sacred, standing above humanity. A second 
 reason is the veneration for the divine that lies in re- 
 ligious life, from which it follows that man does not 
 trust himself to deviate from what is regarded as the 
 divine will ; for such a course would withdraw the grace 
 of God from him, and give the powers of evil the oppor- 
 tunity to rule. 
 
 Hence, religious life is not only more conservative, 
 but contains a number of reminiscent forms of earlier 
 life. For this reason, it is extraordinarily instructive 
 for us; more so, however, as history than as philosophy. 
 
S4] EVOLUTION AND PSYCHIC LIFE 43 
 
 The traditions of a people cling with the greatest 
 tenacity to religion, traditions often consisting of cus- 
 toms, the meanings of which have been completely for- 
 gotten, and which are based on ideas that have long 
 since been forsaken. Such customs, like religious con- 
 cepts, form a drag on cultural life which does indeed 
 sometimes hinder progress because of its restraining 
 power, but, on the other hand, because of the fulness of 
 emotional life that it contains, and by its close connec- 
 tion with the past, affords protection against a too 
 hasty culture of the mind and against a too rapid rush 
 forward. For progress should always be made in such 
 a way that the fruitful seeds of what is passing are 
 retained. This is what is valid in the logical dialectics 
 of the world-process which Hegel has described to us in 
 such a seductive way. 
 
 8. Another peculiarity is that a people, while for- 
 saking old customs, still often retains their symbolism 
 or perpetuates fragments of them. 
 
 This is also of importance in the history of culture, 
 for in this way something is conceded to the demands 
 of conservatism, and in addition, it is still made possible 
 for the gates of progress to open. These fragments are 
 not simply meaningless ruins with merely an antiquarian 
 interest attached to them; they are, as it were, a sop 
 thrown to antiquity in order to induce it to retire from 
 the field. 
 
 2. The Psychic Disposition 
 
 1. Race combines with inherited qualities and talents 
 a certain prejudice and a certain innate purposefulness 
 bred by long practice, and is therefore especially fitted 
 to develop culture in its own way. Hence, the course 
 of culture will be conditioned mainly by the race, to 
 which must be added, of course, the surrounding world. 
 
44 DEVELOPMENT OF CULTURE [ Ch. II 
 
 and the nature of the locality in which the race is active, 
 as was explained on page 24. 
 
 2. In addition, the historical development of the race 
 especially comes under consideration and all the events 
 that influenced its life ; in particular, whether it was able 
 to spread out over wide territory, whether its develop- 
 ment was hampered by surrounding peoples, whether it 
 produced forceful men that prevented the quiet unfold- 
 ing of its nature, and many other points. In the multi- 
 fariousness of these influences lies the charm of historical 
 research. 
 
 3. In speaking of primitive peoples, the term should 
 not be used to mean peoples without any civilization 
 whatever. There are no such nations. If we consider 
 even their languages alone, we see that races which 
 we are accustomed to assign to the very lowest plane, 
 like the Australian savage for instance, must have a culture 
 of centuries behind them. For such languages with all 
 their niceties of speech, with their forms expressing the 
 most remarkable logic, can only be the result of a devel-' 
 opment that has continued for thousands of years. And 
 this also applies to their religious views, which are often 
 developed down to the minutest detail, and are based 
 on concepts that it takes centuries to produce. 
 
 Consequently, when we speak of primitive peoples, 
 we can only mean those peoples that have not attained 
 to the forms of culture that correspond to our own, as, 
 for instance, to a written language, to a complicated 
 national life, above all to the political economy that 
 agrees with our views. 
 
 The impulse for a regulated industrial life is often 
 lacking, or is only very gradually developed, according 
 to the nature of the people. If they have no inclina- 
 tion for it they accumulate nothing but enjoy what 
 they have; indeed, some religions discountenance 
 
§4] EVOLUTION AND PSYCHIC LIFE 45 
 
 keeping anything, as it might attract the evil spiritg, 
 etc. Hence, when they have anything to enjoy, they 
 have a superfluity • — ■ when they have nothing they 
 suffer. (Compare p. 54.) 
 
 It follows that such people never acquire much wealth. 
 
 3. Psychic Impulses 
 
 1. The mainsprings of human culture are always 
 the mental capacities of man, the activity of which 
 vitalizes the history of the world. They are the wheels 
 in the vast mechanism of history, and include not only 
 the qualities that appear in humanity as a whole, but 
 also those that are felt in the life of the individual. 
 First come religious concepts, the consciousness of 
 dependence, the instinctive sense of the interrelation 
 between man and nature, and the idea that tremendous 
 spiritual powers permeate both nature and mankind. 
 This belief is bound up with our human nature, and 
 follows us from the beginning of time up into the high- 
 est circles of culture. Totemism, the worship of an- 
 cestors, the ever-present adoration of this or that being, 
 the belief in certain divinities — all these permeate 
 human life and lead to innumerable institutions of civil- 
 ization. Agriculture, marriage, chieftainry, the State, 
 law and justice, all stand under the influence of high 
 and the highest powers; even family unity is held to- 
 gether by this belief: what man thinks and feels 
 becomes religious; it is brought into connection with 
 those great concepts that control life. 
 
 2. The notion that human culture is controlled 
 solely by the instinctive desire for food and sexual life 
 is one of the monstrous errors of a bygone dilettanteism, 
 a dilettanteism that was unjustifiable even fifty years 
 ago; for it was already possible at that time to under- 
 stand the life of peoples better if more study had been 
 devoted to it. 
 
46 DEVELOPMENT OF CULTURE [ Ch. II 
 
 3. It is true, nevertheless, that the instinct for food 
 plays a large part, and has produced a good share of 
 existing human institutions. All of what we call mate- 
 rial culture is closely connected with it; and if we think 
 of such institutions as the ownership of things and the 
 ownership of natural products, we can form an idea 
 of the incisive influence that all this exercises on our 
 Hfe. 
 
 4. But, in itself, the instinct for food is brutal; it 
 takes what it can get with no regard for how it is ob- 
 tained, for man is omnivorous and consumes every- 
 thing, even his fellow man. Sometimes the instinct 
 breaks out with tremendous power; sometimes man 
 goes hungry, if he can obtain nothing. This state of 
 things does not change until the instinct for food is 
 ennobled by becoming the instinct for wealth, and a 
 certain system and order enter into the acquisition 
 of material goods; then man makes use of nature not 
 only with violence but with deliberation, (p. 54.) 
 
 5. So, too, the sexual life of man arises from one of 
 the most powerful instincts, and the desire for sexual 
 gratification has produced a variety of institutions. 
 Marriage, of course, is closely connected with sexual 
 instinct; but, also, all the forms of sexual commerce 
 outside marriage, and, especially, those originating in 
 temple cults, have been called into being by man's tre- 
 mendous erotic force. 
 
 6. The foregoing remarks show that we should 
 take a very one-sided view, if we regarded hunger and 
 love as the sole propelling forces of human existence. 
 Still other psychic forces appear, chief among which is 
 the love of domination which is inherent, if not in all, 
 at least in the majority of human beings. The desire 
 to be obeyed, the enjoyable consciousness of compel- 
 ling others to service, acts as an incentive, and 
 
§4] EVOLUTION AND PSYCHIC LIFE 47 
 
 produces many institutions and world-renowned deeds. 
 Chieftainry, and the dominion of kings, are largely 
 rooted in this quality, and it has been the cause of 
 numberless revolutions, wars, and violent upheavals. 
 In effect, it often destroys, yet as often constructs and 
 civilizes. 
 
 The passion for vengeance is closely related to self- 
 assertion; for revenge is based on the feeling that one 
 has been humiliated by another, and thus injured in 
 one's love of domination. Later, this revenge gives 
 way to national criminal law, but for a long time it 
 represented justice. Cruelty also is allied to this love 
 of domination, but it contains an additional psychic 
 element, pleasure in inflicting not only humiliation 
 but pain on another; and this instinct of cruelty has 
 entered into the feeling of revenge, as well, besides, 
 giving rise to other human institutions and historic 
 deeds. 
 
 7. The tie that connects egoistic and social instinct 
 is family instinct, which consists of the need felt by an 
 individual of maintaining a connection between himself 
 and others that are near to him. The feeling for family 
 coherence is independent, connected, indeed, with 
 other elements in emotional life, but not conditioned 
 alone by them. It, too, is a tremendous factor in the 
 development of human life. It causes families to cling 
 together with enduring tenacity, even after the religious 
 tie has ceased to be; and it creates in the individual the 
 strong impulse to work and suffer for the members of 
 his family. 
 
 8. To these are added still other principles of a more 
 refined nature: the desire for knowledge, the artistic 
 and technical creative impulse that obsesses thousands 
 and thousands with demoniacal strength, and moves 
 them to discard and reject everything else; and finally 
 
48 DEVELOPMENT OF CULTURE [Ch. II 
 
 the impulse of sympathy that at first is of the nerves 
 and sensual, but later is intellectualized, and which 
 causes the individual to devote his life to the good of 
 others, even to sacrifice himself for the whole. True, 
 it is not correct to see in those so-called "altruistic" acts 
 a complete contrast to egoism, for it cannot be denied 
 that the desire to help others rests on the effort to satisfy 
 one's own inward needs, and hence is beneficial to our- 
 selves. On the other hand, we must not overlook that 
 it is just this egoism which, through the medium of 
 sympathy, leads to self-renunciation and activity for 
 others. It is only the dialectic inversion that changes 
 the idea into its opposite. 
 
 9. All these instincts and impulses in man incite 
 him unceasingly to action, spur him on to new achieve- 
 ments: men build and destroy; often the individual digs 
 into the flesh of the community, while the community in 
 turn annihilates the individual. This is the Calvary of 
 mankind, where the spirit of universal history suffers 
 every moment and dies, to come forth with new radiance 
 from the tomb. 
 
 These forces, out of which culture has proceeded, have 
 also shaped the law and established it; and, again, the 
 law has reacted on these forces in a thousand ways, pro- 
 tecting these instincts in some directions, moderating 
 and weakening them in others; and all this is a part of 
 the task it has to perform. In the development of human 
 culture the law is a strengthening as well as a restraining 
 factor. 
 
86] MANNER OF DEVELOPMENT 49 
 
 SECTION V 
 
 MANNER OF DEVELOPMENT 
 
 1. Collectivity and Individualization 
 
 1. Development consists of an advance that does not 
 take place simultaneously and equally at all points but 
 with much variation and unevenness, during which 
 process culture assumes an increasingly important form. 
 
 2. Humanity is destined to a deep knowledge of the 
 world and of the supermundane. It is destined to form 
 and to rule, to form in the sphere of art, to rule over the 
 earth; and, perhaps, by virtue of technical science, over 
 further fields of the universe. The totality of humanity's 
 achievements is called culture; and in this culture, it is 
 the part of the law to promote and to vitalize, to create 
 order and system, on the one hand; and, on the other, 
 to uphold and further intellectual progress. 
 
 3. Two things are necessary to this end: in the first 
 place, an intensive development of the individual, with 
 the highest possible training of all the mental powers; 
 and, in the second, steady cohesion in order that human- 
 ity may not fall apart into individuals, that in the strong 
 tide that sets toward individualism the community 
 may not lose its hold, an event that would be calamitous; 
 for nothing great and whole can be attained except 
 by the devoted, or at least successful, collective activity 
 of individuals. The minds of men must on the one 
 hand be developed to the utmost as individual intellects, 
 and, on the other, all the results obtained by these 
 intellects must be united in the great common temple 
 of humanity; for only in this way can the collective 
 intellect of the universe be effective. The collective 
 
50 DEVELOPMENT OF CULTURE [ Ch. II 
 
 intellect of humanity is something entirely different from 
 the sum total of individual intellects. 
 
 Thus humanity can operate only in collectivity; it is 
 only the interchange of thoughts and feelings, the union 
 of forces to one end, that makes it possible for mankind 
 to develop culture and to achieve the great deeds that 
 constitute history. The assertion that it is always indi- 
 vidual persons that mould events is considerably exag- 
 gerated. It is true that forceful minds have in many 
 cases pushed culture forward, often in the face of 
 strong opposition on the part of others ; but they were 
 able to do so only by imbuing larger or smaller communi- 
 ties with their own ideas and galvanizing them with 
 their own aspirations. 
 
 4. Hence, it follows, as a matter of course, that the 
 history of the world had to begin with communities 
 (collectivism) ; if for no other reason, than because, in 
 former times, the enemies of man were so many that 
 only strong cohesion could overcome the dangers that 
 threatened him. 
 
 In later culture, we see the individual gradually emerg- 
 ing from the community and leading an independent 
 intellectual life, thus producing extraordinary variety 
 and multifariousness in the life of the nations. But this 
 individualization must never lead to the destruction of 
 the social tie, and may dominate humanity only in cer- 
 tain directions. Humanity must always find a way to 
 use individualism as a stepping stone to new social 
 creations. Even though it be possible for the individual 
 to live his own life and develop his own personality, yet 
 he must always resort to intercourse with others, in 
 order that the whole may benefit by the results of his 
 activity and thought. 
 
 5. Hence, it is the endeavor of cultural life, even in . 
 periods of individualization, to create institutions that 
 
§5] MANNER OF DEVELOPMENT 51 
 
 will pave the way for this collective activity of the indi- 
 vidual and the community. To these belong, in the 
 first place, all associations, especially those called juristic 
 persons; here, too, are to be reckoned all the expressions 
 of personality; for this expression lies in the constant 
 contact of the individual with his fellows which causes 
 the activity and the passivity of the one to affect the 
 whole, so that the latter participates in the personality 
 of the individual. The law of obligations, with all its 
 ramifications, especially operates in this way, and in 
 particular the obligation which has its origin in the 
 partnership relation. The contract is the special instru- 
 ment by which individuals achieve their interests with a 
 social effect. In this way connections are established 
 between the individual and the communal life of man- 
 kind, and just as this occurs in the intercourse of indi- 
 viduals, so, too, it results in the affairs between nation 
 and nation. 
 
 This constant alternation between collectivism and 
 individualism is the principal lever of cultural life. The 
 individual should develop independently but the tre- 
 mendous advantage of collectivism should not therefore 
 be lost. 
 
 6. Hence the course of humanity's development 
 from the beginning has been this: first, mankind acts 
 in groups, the individual is absorbed in the group; 
 the law is the law of the group, not of the individual; 
 the group is the guiding power; labors and amuse- 
 ments are shared in common ; and it is not the individual 
 that thinks, but the group. Hence institutions are 
 produced, like group-marriage, communal property, 
 and common labor. In this way, mankind can resist 
 its enemies and wring enough out of nature to preserve 
 what it already has with the scantiest development of 
 cultural means. 
 
52 DEVELOPMENT OF CULTURE [Ch. II 
 
 To what extent the individual is absorbed in the group 
 is shown by the fact that to be thrust out of the com- 
 munity is the worst evil that can befall a man. Thence- 
 forward he is a nonentity and destined to destruction. 
 Yet, it does sometimes occur that such individuals 
 maintain themselves, and then, if more are cut off 
 from the community, groups of these exiles are formed 
 that continue to exist outsjde of the chief race or tribe. 
 
 The dependence of the individual is shown further 
 by the religious unity of the community; for this uni- 
 fication is due mainly to the idea that all the members 
 of the tribe are protected by the same spirit, and the 
 world of spirits is taken at first, of course, not from 
 the realm of fantasy but from that of reality. The 
 spirits are animals, and the spiritized tribes are animal 
 tribes and bear in themselves the animal nature. Later, 
 this gives place to the cult of creatures of the imagina- 
 tion which originate in the dreams and hallucinations 
 of men, and to ancestor worship. A plurality of clans 
 is thus held together by the custom of group marriage, 
 and in this way the legal order aids in firmly establish- 
 ing and cementing the different tribes. 
 
 Like marriage, all gain is common; no man works for 
 himself, but each for a larger or smaller community. 
 
 7. When, in this way, mankind has grown to a cer- 
 tain measure of strength, when it begins to cultivate 
 nature and turn its attention to agriculture and cattle 
 raising, everything is still held in common for a long 
 time, but yet, individualization in the family and indi- 
 vidualization in wealth begin to be slightly developed. 
 This is increased by the necessity that the tribe separate 
 and seek the, means of subsistence in smaller groups. 
 Thus, gradually, tribalism is displaced, and instead 
 of the community, we find the individual family, monog- 
 amy, and family property; and, in that the individual 
 
§6] MANNER OF DEVELOPMENT 53 
 
 enjoys the fruits of his own labor, communaHstic senti- 
 ment changes into individualistiq feehng, which is one 
 of the greatest forces that inspires human effort and 
 directs it upwards. Each man tries to excel his neigh- 
 bor, and this leads to an abundance of achievements 
 and a plenitude of new cultural values. 
 
 8. Here, too, however, evolution exerts a cohesive 
 pressure ; for the more intense individual development is, 
 the more multifarious it becomes; and the more the 
 individual limits himself to a certain field, the more 
 necessary it is for him to associate with others. Thus 
 individualism must strive again toward collectivism. 
 Problems arise that can be solved only by common 
 effort. The family is no longer able completely to 
 fulfill the duties of training and education, individual 
 rights must be protected by special means, and, above 
 all, it is no longer possible to leave each individual to 
 provide these means himself: the State must intervene 
 as a protecting power and whereas formerly each 
 individual shifted for himself, the activity of the State 
 now interposes. The achievement of a State procedure, 
 a State criminal law, is accomplished; and, from hence- 
 forth, even those institutions in which individualism 
 is most pronounced, like marriage, require the aid and 
 supervision of the State. 
 
 Thus, we see that the powers that individualize 
 humanity lead it again to collectivism, and where col- 
 lective labor formerly went on with the steady rhythm 
 of a pendulum, individual effort now comes into play; 
 henceforth, personal activity becomes the rule, and 
 this again leads to a reconciliation between the individual 
 and the community. 
 
 9. Although, even before this, the law was power- 
 fully effective, its effectiveness is now increased, for the 
 expression of personality requires legal regulation, the 
 
54 DEVELOPMENT OF CULTURE [ Ch. II 
 
 various activities of individuals must conform to certain 
 principles, without which such activities could not 
 exist. And so, again, the law is the magic by means 
 of which society as a whole is held together, like the 
 threads in a closely woven fabric. 
 
 And just as exercise of liberties and powers binds 
 individuals together, so, too, do international activities 
 bind nations; and so, once more, we have the same 
 contradiction between the individual and the collec- 
 tivity, and the same reconciliation brought about by the 
 attitudes of personality and the laws that govern it. 
 
 10. Thus the history of humanity shows a constant 
 tendency toward individualization, and again an un- 
 ceasing pressure toward collectivism; the development 
 of legal principles corresponds to both these move- 
 ments, immeasurably increasing the forces of the indi- 
 vidual, on the one hand, and, on the other, promoting 
 unity so that the achievements and the activity of the 
 individual may benefit mankind. 
 
 2. The Culture of Wealth in Particular 
 
 1. Higher civilization can only be attained if a nation 
 feels an instinctive desire for property, leading it to 
 accumulate wealth and bring it into use. In this way 
 alone can a people reach a thoroughly rational activity, 
 and men be spurred on to make new discoveries and 
 conquer nature: it is the desire for wealth that rouses 
 and intensifies this side of human culture. 
 
 2. But, also, the pursuit of knowledge is greatly 
 heightened by the desire for wealth. The necessity of 
 visiting foreign territory to dispose of wares, of learning 
 to know other countries, of associating with other peoples 
 much promotes the cultural growth of a nation, for 
 trade binds together and involves an exchange not only 
 of goods but also of manners and customs, laws, and 
 other cultural values. 
 
§5] MANNER OF DEVELOPMENT 55 
 
 3. And, in still another direction, the movement is 
 accelerated, for invention and discovery are closely 
 related. Inventive activity leads to discoveries, and 
 these in turn support invention, so that knowledge is 
 much advanced. 
 
 4. This does not mean, however, that all spheres of 
 the human mind are related to trade, for the Hindoos, 
 for instance, would hardly have become such great 
 philosophers if they had not early withdrawn from 
 commercial pursuits; and the monkish learning of the 
 Middle Ages with its philosophical, theological, and his- 
 torical tendencies moved in entirely different channels. 
 
 Yet, even here, gainful occupations were involved to 
 the extent that ecclesiastical communities and monas- 
 teries presupposed an industrious population that earned 
 enough to make it possible for aspiring minds to devote 
 themselves entirely to science. 
 
 5. In another direction, too, the pursuit of wealth 
 is of importance to a people : a nation's power to acquire 
 wealth gives it the upper hand in international quarrels. 
 
 It must be admitted that this is true only within cer- 
 tain limits, because the possession of wealth, especially 
 if it be badly distributed, may have an enervating 
 effect. Yet, this is partly removed if the desire for 
 wealth is very strong, and what has already been ac- 
 quired does not satisfy the individual but spurs him on 
 to new efforts. 
 
 6. The desire for wealth is not innate in the human 
 race. It requires external factors to urge man to accu- 
 mulate and to engage in regular gainful activity, and 
 among these factors two are especially important: first, 
 the temporary lack of subsistence which necessitates lay- 
 ing by something for the future as an alternative to 
 starvation; and, secondly, agriculture, which has the 
 peculiarity of bringing in all its returns at one time after 
 
56 DEVELOPMENT OF CULTURE [Ch. II 
 
 a longer or shorter period of labor. It follows that at 
 harvest time something must be stored up for the 
 ensuing months. 
 
 When, in this way, regular activity is developed, the 
 desire to accumulate arises, and when a nation has even 
 an incomplete grasp of economic principles the pursuit 
 of wealth will grow to greater dimensions, and a law of 
 property relations follows of itself. 
 
 7. As soon as the desire for wealth becomes active 
 in man, what is called capital makes its appearance. 
 Under capital, which is rather an economic than a juridi- 
 cal term, is understood an accumulation of the produce 
 of industry which is not intended to be consumed, at 
 least, which is not at once consumed, but is kept either 
 for later consumption or to serve for further production. 
 Only a nation that accumulates capital can rise above 
 the vicissitudes of life to consistent and permanent 
 activity, and only such can attain to extensive produc- 
 tion. For the latter always presupposes the existence of 
 capital for production, and sufficient supplies to allow 
 for time devoted to some particular activity. 
 
 8. Agriculture, or rather the cultivation of the soil, 
 is one of the essentials to higher culture; it leads to a 
 settled life and makes it possible for larger numbers of 
 people to live in a limited territory; and it alone guides 
 man to a sense of wealth, and to the accumulation of 
 capital. It sqts him free to a greater or less extent from 
 the chances involved in procuring the produce of indus- 
 try and enables him to lead a regular life. 
 
 On the other hand, it presupposes certain special 
 qualities; especially, it requires a man to devote himself 
 to regular manual labor and, to a certain degree, to 
 subdue his passions. It also needs a certain amount of 
 skill and, above all, the firm self-control that drives a 
 man to work even when he is little inclined to do so. 
 
§5] MANNER OF DEVELOPMENT 57 
 
 Not all the intellectually important nations have 
 developed these qualities, and where they have failed 
 to do so, and in consequence have not turned to agri- 
 culture, they have never been able to rise above a cer- 
 tain state of culture. Their accumulation of wealth 
 and capital has never been sufficient to allow them to 
 obtain all those advantages that accrue from a well- 
 developed and active desire for wealth. 
 
58 DEVELOPMENT OF CULTURE [Ch. Ill 
 
 CHAPTER III 
 SECTION VI 
 
 CULTURE AND LAW 
 
 1. The requirements of the law are the requirements 
 of culture. The law must be so constituted that it 
 may in the greatest degree conform with culture. It 
 must aid in developing the seeds of culture and in repress- 
 ing the elements that are contrary to it. But it must 
 be borne in mind, that the course of culture is often not 
 direct, that it reaches its goal by a roundabout way, 
 and that not infrequently it has to advance through a 
 long, uncultured period. But even such an age demands 
 its system of law. It will naturally desire a code that 
 as far as possible is in accordance with its own uncul- 
 tured state; while, on the other side, a higher compre- 
 hension of the law aims at so ordering matters that 
 periods opposed to culture are shortened as much as 
 possible, that antagonistic tendencies are weakened, and 
 that thus the normal condition of progress is more 
 quickly re-established. 
 
 This often leads to a schism in legal tendencies be- 
 tween the masses, on one hand, struggling for a legal 
 system that will correspond to their own uncultured state, 
 and, in opposition, far-sighted minds trying to bring 
 about a change. To realize this we need only recall the 
 offering of human sacrifices, the persecution of witches, 
 and note, in our own day, the custom of dueling, still 
 regarded by some people as indispensable, (p. 39.) 
 These are the times when the law-giving spirit that 
 stands above the people is especially called upon to 
 
§6] CULTURE AND LAW 59 
 
 wrestle with the popular mind, and to diminish its 
 illogical efforts. 
 
 2. The requirements of the law are evoked by the 
 needs of material and intellectual culture. Both should 
 be regulated and promoted by the law. At the same 
 time, material and intellectual culture must not be 
 sharply separated but must stand in close relation to 
 each other. Material culture must not stray into paths 
 where the mind cannot follow it, where it would grow 
 unreasonable and offend against the principles of moral 
 life in particular; for lack of morality is lack of reason. 
 In considering these momenta, recognition of the proper 
 requirements of the law is called into play, and further, 
 the art of suitably meeting these requirements with 
 new legal constructions and reforms. 
 
 3. Fulfillment of legal necessities is the mission of the 
 legal order. The latter, like all the elements of culture, 
 appears in naive unconsciousness; indeed, originally, it 
 does not appear at all, being enveloped in the whole 
 mass of cultural tendencies: IcEw, customs, manners, 
 religion, all form one unity which arises from the com- 
 prehensive activity of the many who, sometimes fol- 
 lowing a standard, sometimes deviating from it, in 
 numberless details realize the impulse to fulfill the inner 
 necessities of the law. (Compare p. 86.) 
 
 4. Law is the standard of conduct which, in conse- 
 quence of the inner impulse that urges men toward a 
 reasonable form of life, emanates from the whole, and is 
 forced upon the individual. It is distinguished from 
 morals, customs, and religion as soon as the point is 
 reached at which compulsory standards are separated 
 from those commands that involve merely social amenity, 
 not the possibility of remaining unchallenged in society. 
 
 5. In the course of development, the legal order 
 appears more and more as an order of rights, that is to 
 
60 DEVELOPMENT OF CULTURE [Ch. Ill 
 
 say, a distribution among mankind of the advantages 
 of life ; and one of the important functions of the legal 
 order is to protect these rights.^ Yet this is not its sole 
 task. It is also the guardian of cultural values that are 
 not distributed among mankind but which must be 
 preserved for all humanity, at least for the whole nation, 
 to insure a prosperous development and to promote 
 cultural endeavors.^ 
 
 6. Finally, it is the function of the legal order to 
 secure and increase the progress of culture by so moulding 
 rights and the universal cultural values which it protects 
 that the hampering elements are removed and the 
 upward tendencies are supported and strengthened. 
 This is brought about especially by the manner in which 
 personality gains its forms of expression. The cultural 
 forms of expression (Verkehr) which are developed 
 through the standards of law are called acts in the law 
 (Rechtsverkehr) , and a great many legal standards are 
 standards of liberty and power. 
 
 7. Acts in the law (Verkehr) have the mission of so 
 distributing material possessions that they will be of 
 the greatest service and benefit to humanity. Hence 
 such acts are a civilizing factor, and everything that 
 supports them tends to promote culture. We cannot, it 
 is true, expect those who are engaged in carrying on 
 pecuniary transactions to serve humanity in this way. 
 Such altruistic intentions would also be far too weak 
 an impulse to invigorate human action. Egoism, too, 
 one of the greatest propelling forces of mankind, is needed. 
 Egoism in motion works wonders. It stimulates human 
 activity, urges man on to constant effort, sharpens his 
 
 1 This subject has been elsewhere dealt with. ("Lehrbuch des biirger- 
 lichen Rechts," I, p. 46; "Einfiihrung in die Rechtswissenschaft," p. 4.) 
 
 ' This subject is more fully discussed in connection with the theory of 
 legal technic, p. 66. 
 
56] CULTURE AND LAW 61 
 
 wits, and causes him to be unremitting in his search for 
 new resources. Hence, the legal order could not do 
 anything more foolish than seek to uproot or even to 
 combat egoism ; and it is therefore comprehensible that 
 laws relating to human activity, especially commercial 
 law, are based on this egoism; for one of the most essen- 
 tial processes in history is just this use of individual 
 instincts to form the culture of the whole. The inten- 
 tion to benefit society may indeed be present as a very 
 secondary consideration, but its importance is relatively 
 slight. 
 
 Objectively, however, external life must be so adjusted 
 that it serves the interests of culture; that is, it must 
 tend at the same time to increase the quantity of the 
 world's goods and to extend their usefulness. If trade 
 moves in other directions than these, it is unfruitful, 
 and may even have an injurious and corruptive influence. 
 Thus it is, for instance, if commerce becomes simply 
 gaming, so that no redistribution of material possessions 
 is brought about, but merely one individual is made 
 richer and the other poorer ; that is, one loses what the 
 other gains. In this way, gaming stands in contrast 
 to speculation. If two merchants agree that, according 
 to the state of the prices in the exchange, the one must 
 pay the other, this is simply a game that brings about 
 no actual movement of wares. But, if they agree that 
 on a definite day the one is to deliver goods to the other 
 at a certain price, the one does indeed become poorer 
 and the other richer ; but a transfer of wares has been 
 accomplished, and this is part of the organic movement 
 of commerce, the general practice of which invigorates 
 culture, for commerce is composed of a multitude of 
 separate movements and every separate movement or 
 transaction operates as a part of the whole. 
 
 Speculation ig a combination of transactions under- 
 taken for the purpose of gaining profit from the whole. 
 
62 DEVELOPMENT OF CULTURE [Ch. Ill 
 
 A man tries to bring about a movement of goods that 
 will also bring him personally an advantage, as, for 
 instance, if one buys goods and sells them again; he 
 hopes to sell them at a higher price than he paid for 
 them. The combination of these two transactions, pro- 
 ducing the profit that remains to the purchase, after he 
 has resold the wares, and thus thrown them once more 
 on the market, is speculation. The profit that he gains 
 by this speculation is the result of his own effort, and is 
 the reward for his activity, which is cultural in its effect, 
 just because, by moving the wares, he has enriched 
 commerce. 
 
§7] . PEACEABLE REGULATION 63 
 
 CHAPTER IV 
 
 SECTION VII 
 LEGAL ORDER AND PEACEABLE REGULATION 
 
 1. In addition to the legal order peaceable regulation 
 is indispensable. It rests primarily on a religious basis 
 and is therefore dependent on the religion that domi- 
 nates society. This peaceable regulation is a necessity 
 founded on the peculiar nature of our race, and, espe- 
 cially, on two qualities: our blind passionateness, and 
 the incompleteness of our knowledge. If it were always 
 possible to see clearly and surely into the existing state 
 of the law, the members of the human race might more 
 easily be allowed to seek and provide their own law, 
 but the errors and ignorance of the mass and the diffi- 
 culty of solving many legal problems make it impossible 
 permanently to leave the exercise of the law to the indi- 
 vidual; for, since legal views and legal interpretations 
 are highly variable, the result would be collision of irrec- 
 oncilable contradictions; and instead of a settlement 
 we should have merely oppression, the victory of the 
 stronger, without either the one or the other being 
 obliged to declare himself legally defeated. But the 
 blind passionatenesss of men frequently causes the 
 efforts of justice to be clouded by injustice, and leads 
 men to try to gain an advantage; that is, to gratify their 
 animosities with no heed to the law. 
 
 2. Thus it happens, that even in cases where the 
 law is as clear as day, its administration is difficult, and 
 sometimes the debtor resists it with the greatest obsti- 
 nacy; sometimes people claim the right to legal redress 
 
64 DEVELOPMENT OF CULTURE . [Ch. IV 
 
 entirely without justification. In such case legal pro- 
 cesses become acts of violence, and under the cloak of 
 justice injustice is done; the administration of justice 
 becomes a pretense concealing acts of violence of the 
 worst sort. 
 
 3. To this is added, in the course of time, inequality 
 of position and means. One man is economically and 
 socially strong, the other is not. One has an abundance 
 of resources on his side, the other stands alone. In 
 such cases, the evil consequences that arise from the 
 human qualities mentioned above appear with double 
 and triple force. The weaker man cannot maintain 
 his right against the stronger, because the latter is able 
 to give rein to his passionate animosity; and this might 
 tempt him to do violence, under the cloak of justice, to 
 the poor and weak that stand in his way. Owing to 
 these human frailties, the legal order alone cannot 
 suffice ; peaceable regulation must be added. The pur- 
 port of the latter is : the existing state of society with its 
 interests must not be changed by arbitrary power, not 
 even if the former is not in accordance with the law; 
 if it is to be altered the change must be wrought by a 
 higher authority, one from which a dispassionate examina- 
 tion of the matter and a deeper insight into the law may 
 be expected. 
 
 This need of peaceable settlement has given rise to 
 two institutions : first, possession in connection with the 
 institutions of necessary defense for the protection of 
 the person and of his interests {Notwehr); second, the 
 means of realizing the law and settling disputes, that is, 
 legal process (civil procedure) . 
 
 Still another institution belonging to peaceable regula- 
 tion is of importance for a long time in history, though 
 later it loses something of its significance. This is the 
 right of sanctuary, which checks kin-revenge, and in this 
 
§7] PEACEABLE REGULATION 65 
 
 way leads to the State penal system. The extension of 
 sanctuary is nothing else but the complete abatement of 
 kin-revenge, and thus the echoes of the idea of sanctuary 
 continue to be heard in later periods. While formerly kin- 
 revenge was limited according to locality, time, and other 
 circumstances, it is now entirely abolished; for every 
 place, every time, and all circumstances are sanctuary, 
 and resist its power. 
 
66 TECHNIC OF LAW [Ch. V 
 
 CHAPTER V 
 THE TECHNIC OF THE LAW 
 
 SECTION VIII 
 1. RIGHTS AND THE CULTURAL ORDER 
 
 1. General Remarks 
 
 1 . The technic of the law is part of the Philosophy of 
 Law only in that it must be such as to accomplish the 
 tasks required by the Philosophy of Law. Any legal 
 technic that fails to produce on culture the effects that 
 legal philosophy demands is a failure. 
 
 2. Legal technic must be so constructed that rights 
 may exist, in such manner that a so-called legal subject 
 (Rechtssubjekt) is the holder of the right, and that his 
 interests are secured by law, and that he is provided with 
 the possibility of using the object of his right as he wishes, 
 thus exerting an influence on the cultural world. 
 
 3. But this alone is not enough, for also the general 
 interests of mankind, which cannot be traced back to a 
 single human individual, require to be upheld and pro- 
 moted. In order thus to fulfill the requirements of 
 culture, legal technic has developed in two directions: 
 
 (o) The law issues commands and prohibitions, the 
 essence of which is not that the rights of the individual 
 shall be preserved, but that the original interests of cul- 
 ture in general shall be promoted. Under this head 
 belong the many regulations in respect to sanitation, to 
 the promotion of morality in general, to the preservation 
 of a certain state of the earth's surface (the supervision 
 of rivers, conservation of forests, etc.) . Here, too, belong 
 
§ 8 ] RIGHTS AND THE CULTURAL ORDER 67 
 
 the manifold statutes that refer to education, social and 
 economic conditions, etc. This is the field of cultural 
 advancement through police and penal regulations. In 
 connection with this stands the law of taboo. 
 
 Taboo in general means forbidden, and refers to every- 
 thing that, for reasons based on mystical and religious 
 grounds, is forbidden to the individual, the whole or a 
 part of the people. Thus the conception grows out of 
 primitive mysticism, but it has a strongly formative 
 effect, for a great deal of what is necessary to human 
 progress is accomplished by means of such prohibitions. 
 We need only recall the great number of sanitary meas- 
 ures that could not have arisen except in this way. 
 Of course, originally, the taboo was enveloped in a 
 mass of so-called superstitions, that is, in a mass of 
 ideas which, in one direction or another, gave expression 
 to a principle of faith, only to die out later because they 
 were merely of temporary significance, and disappeared 
 in the light of more advanced knowledge. 
 
 In this way the custom of taboo could, to a great 
 extent, take the place of our police regulations; for as 
 soon as priesthood and chieftainry become more power- 
 ful, not only those things are tabooed that have hitherto 
 been sacred, but the priests and chiefs have the right of 
 putting others under taboo. If they do not exercise 
 this right arbitrarily, but on rational grounds, the 
 taboo becomes a beneficial means of removing the 
 absurdities and indecencies of the people, and investing 
 life with a certain dignity and sublimity. 
 
 (b) Another technical possibility is the creation of 
 so-called juristic persons. The law may invest either 
 an aggregate of men, or a unity of interests organized 
 for the purpose of carrying out some definite aim, with 
 legal subjectivity and give them the possibility of hav- 
 ing rights and duties and undertaking legal acts. Through 
 
68 TECHNIC OF LAW [ Ch. V 
 
 this legal figure of the juristic person, the legal order 
 obtains a lever which enables it to operate in all direc- 
 tions for its own ends, not only for a time, but perma- 
 nently. And thus it gains the means of protecting 
 animals, for instance, of which we shall have more to 
 say shortly, (p. 69.) 
 
 The question whether the juristic person is real or 
 imaginary should never have been seriously advanced. 
 It is a reality in the law like every reality created by the 
 law. It is not a human being of flesh and blood. Old 
 and new absurdities that testify to the failure to compre- 
 hend this, need not be considered. 
 
 (c) Where the person oscillates between existence 
 and non-existence, or when the interests of a future 
 person are to be presently secured, a constructive legal 
 subject is necessary, in order that the possibility may 
 exist of having rights and holding possessions that serve 
 this end, and in order that property may daily and 
 hourly participate in the expressions of life, essential to 
 its development. There are no rights without an 
 owner, that is, rights that lack the subjective element; 
 indeed the whole assumption of rights without an owner 
 is at variance with the fundamental construction of our 
 law, and at the same time with the permanent needs of 
 the external world. For a constructive legal subject, 
 a human organ is necessary; but there may be various 
 organs: thus, if it is a question of the accumulation of 
 wealth for a definite purpose, then the organ is the 
 committee that collects it, and the person operates 
 through this organ; if there is no such committee, or 
 if it has ceased to be, a trustee must be appointed, who 
 is then the organ of the person. 
 
 But, how is it, if property is devoted to certain purposes 
 without the existence of a committee; as, for example, 
 when feed baskets are put up for birds, wreaths laid on 
 
§ 8 ] RIGHTS AND THE CULTURAL ORDER 69 
 
 graves, when provisions are stored in a mountain club- 
 hut for the use of travelers? If there is any need that 
 such things should have a representative, if, for instance, 
 a person takes them away from the birds, the dead, or 
 the mountaineer, then doubtless also an administrator 
 must be appointed legally to prevent such acts. 
 
 A discussion of the many great and small errors that 
 have been made in regard to this matter may be omitted. 
 
 Animals 
 
 1. Animals cannot be admitted into the world of cul- 
 ture as legal subjects, and a legal order that should assign 
 to animals rights and powers could not be carried out. 
 Animals themselves have no rights, that is to say, they 
 stand outside the legal scheme ; which is the more natural 
 because our civilization cannot get on without a constant 
 struggle against the animal world ; and, as the promotion 
 of culture is the whole purpose of our existence, there 
 can be no objection to our developing our interests to 
 the full as against the animal world. 
 
 2. But refusing to accord rights to animals does not 
 mean that human culture can permit them to be ill- 
 used. Refined culture is conscious of the presence on 
 earth of other beings with feelings besides men, and 
 therefore it regards it as mischievous, if these creatures 
 are subjected to unnecessary torture. This, too, gives 
 rise to the principle: suffering shall be inflicted on ani- 
 mals only when cultural ends absolutely require it. Our 
 culture must be a culture of happiness to this extent, 
 that all efforts that tend to reduce the state of happiness 
 must be checked, unless the interests of culture demand 
 them. 
 
 3. This justifies the law against cruelty to animals 
 and all the institutions that are connected with it ; also, 
 especially, the principle that all measures pertaining to 
 
70 TECHNIC OF LAW [Ch. V 
 
 the better treatment of animals should be promoted as 
 far as possible. 
 
 4. In accordance with this principle, animals, it is 
 true, can have no rights, but their interests are a proper 
 object for foundations; the fund being the property of 
 the juristic person, but the proceeds being directed 
 toward benefiting the animals. Thus it is with the 
 fund for swans (Hamburg); for the preservation of 
 buffaloes (New York); the care of sick animals (India), 
 etc. 
 
 Objects of Rights 
 
 1. Rights require a legal subject and a legal object. 
 Legal objects may be things or persons. They may 
 also be forces, connected with things, but yet controlled 
 as something separate, like electricity for example. 
 That it is much the same in respect to running water will 
 be explained below. They also may consist of immaterial 
 things ; thus, ideas of all kinds, from which advantage 
 may be derived in a certain way, and which therefore 
 become objects in the realm of economics; hence, we 
 speak of rights in immaterial things. 
 
 2. Rights in persons, again, may be rights in one's 
 own body and rights in other persons. Peculiar to both 
 is this : that the rights can only extend so far that the 
 person still remains a person; that is to say, is still, at 
 the same time, recognized and protected as a legal sub- 
 ject. This is fully dealt with in my "Einfiihrung" and 
 in my "Lehrbuch des biirgerlichen Rechts," and cannot 
 be treated in detail here because we cannot do more than 
 indicate the broad outlines of legal technic. 
 
 3. The totality of things to which a person is entitled 
 is called property; hence, property may consist of 
 material things, immaterial things, and also of persons 
 in as far as they are affected by creditors' rights. 
 
 4. This totality, however, is not to be regarded as a 
 
18] RIGHTS AND THE CULTURAL ORDER 71 
 
 new proprietary whole, as if everything formed one 
 single object, thus making a new legal object. To treat 
 it in this way would be contrary to the rules of legal 
 technic, and would make it a source of great uncertain- 
 ties. If, for example, an object does not belong to me, 
 but is treated as a part of my property, this might lead 
 to the most inconsequent results and difficult conflicts. 
 
 5. But this does not prevent property, as the sum 
 total of all proprietary objects, from having a certain 
 significance, for, — 
 
 (a) The comprehensive term is of importance in 
 cases where property is transferred among the living 
 or on account of death; a transfer in which "property" 
 is named as the object of the transfer, embraces of itself 
 all the property known and unknown, taking into con- 
 sideration the debts. 
 
 (&) It is important in cases of liability for debt; for 
 since this has changed from liability of the person to 
 liability of property, the property as a whole is of impor- 
 tance in as far as the liability attaches to all the property 
 both known and unknown. 
 
 (c) It may happen that one person is the holder of 
 several objects of ownership and that these. objects may 
 suffer different fates. In such cases the principle of 
 substitution (Ersatzgrundsatz) may be applied; that 
 is, one object out of the property A may be substituted 
 for another. What is substituted takes the place of the 
 original ; this principle [of alternative obligation] I have 
 already discussed elsewhere.* 
 
 2. General Rights and Limited Rights (Vollrecht und 
 
 Teilrecht) 
 (a) Servitxides {Substanzrecht) . 
 
 1. Wherever there are rights, there too is found the 
 division between general and limited rights [jura in re 
 
 ' "Archiv fiir biirgerliches Recht," XX, p. 1 ff. 
 
72 TECHNIC OF LAW [Ch. V 
 
 propria, and in re aliena]. It is found in the sphere of 
 the law of things, both material and immaterial, and also 
 in the law of obligations (Forderungen). Everywhere 
 we Come upon the difference between servitudes {Sub- 
 stanzrecht) and securities {Wertrecht). 
 
 Hence, there are general rights in things as there are 
 general rights in claims {Forderungen) ; limited rights in 
 the one, as there are in the other; and thus, too, there are 
 servitudes {Substanzrecht) , and securities {Wertrecht) . 
 
 2. A systematic presentation must therefore make 
 clear the difference between general and limited rights, 
 and between the different kinds of general rights without 
 reference to the kind of rights in question. 
 
 This has hitherto been regularly neglected, and the 
 difference between general and limited rights has first 
 been developed in the law of material things ; and in this 
 connection ownership, usufruct, pledge rights have been 
 spoken of. These categories have then been transferred 
 to other kinds of values {Gilterarten) , especially to claims 
 {Forderungen). This has led to serious errors in method. 
 It was thought that if pledge rights in material things 
 belonged to the law of material things, pledge rights 
 might always be treated as rights in such property, and 
 so with usufruct. A more correct view of the matter 
 would be on the contrary: usufruct, pledge rights, etc., 
 are neither rights in material things nor obligation 
 rights {Forderungsrechte) , nor immaterial rights {Imma- 
 terialrechte) , but signify a definite degree and a definite 
 kind of limited title (Berechtigung) , which may occur in 
 relation to proprietary objects of all kinds, and their 
 correlate is not either ownership, obligation rights, or 
 patent rights, but general rights. 
 
 3. This does not prevent limited rights in reference 
 to material things from evidencing certain peculiarities 
 of the law of material things; and it is just so with 
 
5 8 ] RIGHTS AND THE CULTURAL ORDER 73 
 
 limited rights in immaterial things, and in obligations. 
 Hence, there is no absolute error in discussing them in 
 connection with the corresponding branches of the law. 
 Only it must always be borne in mind that in dealing 
 with usufruct in relation to material things, to obliga- 
 tions, to inventions, and with pledge rights in material 
 things, etc., we are not concerned with the same right 
 but with entirely different rights, which are alike only in 
 that they stand in a definite relation to the general 
 right; for their qualification is expressed in this, that 
 the law of things, material and immaterial, and the law 
 of obligations have a special character in a certain degree 
 and in a certain way. 
 
 4. The essence of limited rights is this, that they 
 embrace a part of the powers of general rights but still 
 leave a residuum to the owner who stands in the back- 
 ground. 
 
 If the separation had been made permanent, a dis- 
 memberment of the right would have resulted. And 
 this in turn would have involved the greatest difficul- 
 ties if later one of these limited rights lapsed, so that the 
 original general right would be partially existent, partially 
 non-existent. Most nations have avoided these diffi- 
 culties by means of the ingenious idea that these limited 
 rights should not form a permanent section cut out of 
 the general right, but should merely be superimposed 
 on it; so that, as long as the limited right exists, the gen- 
 eral right is encumbered with it, but as soon as the 
 limited right expires, the general right immediately 
 regains its complete scope. Therefore the cutting of a 
 section out of the general right has not resulted in a 
 permanent reduction and curtailment of the general 
 right, but on the contrary, it has been made possible for 
 this right to return to its former condition, to "con- 
 solidate." 
 
74 TECHNIC OF LAW [Ch. V 
 
 Such a consolidation may also occur if the holder of 
 the limited right is also the holder of the general right. 
 But, in such a case, the consolidation conforms to jus- 
 tice only under certain preliminary conditions; that is, 
 if neither of the rights loses by the consolidation. If this 
 is the case, however, both rights continue to exist until 
 the limited right expires or until conditions have changed 
 so that it is no longer necessary to maintain the two 
 rights separately.^ 
 
 This idea is in accord with reason. What rational 
 ground could there be, when rights concur, for diminish- 
 ing one of them? And yet it was long before this came 
 to be recognized. 
 
 .5. This instrument of juristic technic is very 
 important; for it makes it possible for ownership to 
 branch out in various directions without danger of 
 property becoming ownerless, which would be the 
 case if only a temporary and passing right were 
 attached to it. 
 
 On the other hand, the value of this technic must 
 not be overestimated. It must not be assumed that it 
 is the only proper and acceptable one; for it is quite 
 conceivable that a legal system might allow a general 
 right to a thing with certain restrictions (beschrdnktes 
 Vollreckt), and that should the contingency defined by 
 the restrictions arise, it should annul the right, and 
 declare that no right to the thing exists. In such a 
 case, where there is nothing behind the right, it is 
 irrational to deny it the character of a general right of 
 ownership; for then it is a general right of a qualified 
 nature, subject to being divested. But it is expedient 
 to avoid, as far as possible, this "ownerlessness"; 
 hence, so to arrange the construction, that a general 
 
 » Compare my "Gesammelten Abhandlungen aus dem romischen und 
 franzosischen ZivUrecht." respectively 1S8.3 cind 1877, p. 295. 
 
S 8 ] RIGHTS AND THE CULTURAL ORDER 75 
 
 right exists behind the qualified right, which, when the 
 latter ceases to be, "consolidates." It is not a necessity 
 of Natural Law to accept this, but it is a useful idea, and 
 one that promotes cultural order. 
 
 2 ypes of Limited Rights 
 
 1. In the life of nations limited rights of a highly 
 personal nature are common, that grant to an individual 
 during his life-time certain powers, and in particular 
 that allow him the use of a thing in order to provide 
 him, as long as he lives, with certain advantages and to 
 secure to him the means of living in comfort. Such rights 
 have an economic function similar to annuities; except 
 that they grant the benefit to the individual directly and 
 not through the medium of the law of obligations. 
 
 2. Such personal limited rights are, first of all, usu- 
 fruct and usufructuary family rights. It is a matter of 
 surrendering to some one temporarily the possibility of 
 receiving the proceeds of a legal advantage (Rechtsgut) . 
 This may be done in two ways: either so that the usu- 
 fructuary himself draws the emoluments directly from 
 the object; or so that the object is administered by a 
 third person who delivers the net proceeds to the usu- 
 fructuary. The former is the most usual method, the 
 underlying idea being that the individual with a right 
 shall exercise the right himself. But the notion that 
 a temporary possibility of using the proceeds of a thing 
 may be made the object of a right, while what is called 
 the economic substance, that is, the fundamental force 
 (Grundkraft) of the thing, still belongs to the holder of 
 the original right, is so rational that it developed inde- 
 pendently in the different systems of law. Thus we 
 have the Roman usus fructus, the German life pension 
 {Leibzucht) ; it is an almost indispensable factor in civil 
 life. The usufruct may be of particular importance 
 
76 TECHNIC OF LAW [Ch.V 
 
 when it relates to a whole estate; in which case the 
 usufructuary must be given a certain right of disposal 
 to some objects, because without such a right the 
 administration of an estate is inconceivable. Family law 
 especially, in many cases shows instances where members 
 of the family are granted temporarily such a right of 
 usufruct (Ertragsrecht) , supplementary to the power of 
 personal control of the family. (Compare p. 110.) 
 
 3. Such a section cut out of the general right may also 
 be so constituted that it attaches to the personality of 
 the entitled subject. This may be accomplished in 
 either of two ways: 
 
 (a) So that the holder of the right receives something 
 in addition to the proceeds, in particular the privilege of 
 selling the thing or part of it ; this is the case in what is 
 called Verfiigungsniessbrauch; for example, the life 
 pension (Leibzucht)^ in German law. 
 
 (b) Sometimes, however, the personal relation is 
 such that the holder of the right receives less than the 
 full proceeds; namely, only as much income as is neces- 
 sary for his personal maintenance ; and in special cases a 
 person may have the right of residence in a dwelling 
 house as far as he needs it for his own personal use. 
 In contrast to this, is the usufruct of rights which, 
 though connected with a person, grants him a right of 
 enjoyment, limited not subjectively but objectively, 
 that is to say, according to the income that a property 
 brings in regularly. This usufruct has this advantage, 
 that the beneficiary is provided for, over and above the 
 mere necessaries of life, and that the question, what is 
 necessary for maintenance and what is not, does not 
 arise, a question that frequently leads to the most 
 painful discussions. 
 
 " Another case of usufruct in property has just been mentioned. I 
 first developed the whole legal structure of the "Verfugungsniessbrauch" 
 in the "Jahrbiicher fiir Dogmatik," XXIV, p. 187. 
 
§8] RIGHTS AND THE CULTURAL ORDER 77 
 
 4. A special kind of title (Berechtigung) allows a 
 person the use of a legal object (Rechisgut), but not an 
 exclusive right to it; so that others may be granted 
 a similar use. His interest might thus become very frail 
 were it not that the proceeds of certain things are so 
 large that a number of such rights of usufruct can exist 
 in common without the interest of one shrinking to a 
 shadow. Especially as regards rights in immaterial 
 things such non-exclusive rights, so-called license rights 
 (Lizenzrechte) , are very common; but it is quite con- 
 ceivable that they may exist in respect to other things, 
 for instance, quarries, mines, and so forth. 
 
 5. There is still another kind of limited right which 
 is thus characterized : the holder of the limited right has 
 the privilege of using the legal object for the purpose of 
 fulfilling at the same time certain duties towards the 
 holder of the general right. Thus, on one side, this 
 segment taken from the general right imposes a legal 
 encumbrance on the holder of the general right, while, 
 on the other hand, it renders him the service performed 
 by the holder of the limited right. German law with 
 its usual genius has grasped the separateness of these 
 rights. Thus, it was possible for what are called feudal 
 rights to originate ; the vassal receiving certain rights in a 
 landed property, with the obligation to render certain 
 services to his lord. The underlying idea here was 
 that the proceeds of the property should make it possible 
 for him to maintain his position, and to give his full 
 measure of service to the feudal owner. This type of 
 limited right is found today in the right of publication 
 (Verlagsrecht) , the publisher receiving rights of user 
 (Benutzungsrechte) in an immaterial thing ;^ to the end 
 that he may bring the latter before the public, and thus 
 
 ' With those who do not agree with me in regard to this parallelism of 
 rights (compare "Autorrecht," p. 290), I do not care to argue further. 
 
78 TECHNIC OF LAW [Ch. V 
 
 work for the advantage of the individual who is entitled 
 to the immaterial thing. The most typical example is 
 the publication of writings, but the same thing has also 
 been developed in other rights in immaterial things ; for 
 instance, rights in patents of invention, and even in the 
 sphere of the law of material things, it is quite conceivable. 
 
 6. The rights within the general right are often so 
 constituted that they almost exhaust the latter, and 
 leave to its holder only certain rights of supervision 
 (Aufsichtsrechte) , or, it may be, certain profits which 
 are not connected with the law of obligations in 
 character, but are based on the object. Such rights are 
 especially common in the law of material things (Sach- 
 enrecht) and, especially, landed property; they are 
 principally the result of bondage-conditions (Horigen- 
 Verhdltnisse) arising from the fact that slaves, or the 
 [so-called] half-slaves were allowed to live on the soil 
 and to remain settled on the land with their families 
 (p. 93 (5)), or from the fact that a tenant who would 
 otherwise have lived on the land only for a number of 
 years, was granted a permanent right. 
 
 These conditions have become of the greatest possible 
 economic and cultural importance; for owing to them 
 a more or less prosperous peasant or farmer class (Bauern- 
 stand) has been able to develop, attached to the soil, 
 and thus forming a strong main stock of the population. 
 As time went on, the feeling of independence became 
 more and more pronounced, and the effort to cut loose 
 from the owner continued to grow in power. Thus it 
 was finally achieved that the right of ownership re- 
 ceded in importance, and that in this way a free class 
 of rural inhabitants grew up. 
 
 (&) Securities. {Wertrechte.) 
 
 1. Of an entirely different type are the rights that 
 are called securities {Wertrechte); the peculiarity of 
 
§8] RIGHTS AND THE CULTURAL ORDER 79 
 
 which consists in this, that the person who is entitled 
 to the security has the power to exercise a right fully 
 or partially in order to obtain from it a certain security 
 limited by the right, and with the attainment of which 
 the right ends. These are rights which do not aim to 
 bring out the intrinsic usefulness of objects in their 
 economic significance. Their sole purpose is to draw a 
 certain money value either from the use or the sub- 
 stance of a thing. 
 
 2. The consequence is that the concrete nature of 
 the thing recedes and the abstract advances; it no 
 longer comes under consideration as a separate useful 
 entity, but as a means of security (Wertwesen) ; so that- 
 things susceptible of the most different uses serve one 
 and the same end, that is, the realization of value. 
 
 3. These rights of security have this great impor- 
 tance, that they break up the rigidity, especially the 
 immobility of property and lend elasticity to the whole; 
 in particular, by drawing out of immovables the value 
 that is in them, they endow them with cultural signi- 
 ficance, and by virtue of the uniformity of value, uni- 
 versalize the particularities of the individual objects.^ 
 This appears from the following: 
 
 4. Value may be used for thousands of things, but 
 chattels, land and animals can generally be used only 
 for certain purposes. Hence, it is necessary to convert 
 the particular utility into an abstract monetary value, 
 so that the thing can be of use wherever a monetary 
 value is required to stimulate any speculation, or to 
 satisfy a monetary need. In this way, an object that 
 would otherwise be fit for only five or six purposes, can 
 be made useful for hundreds of purposes. By this 
 
 ■ I first developed the idea of "Wertrecht" in the "Archiv fllr civ. 
 Praxis," vol. 91, p. 155. Of course, my explanations met with vehement 
 contradiction. It would be useless to dispute the matter further. 
 
80 TECHNIC OF LAW [Ch.V 
 
 device, all the thousands and thousands of proprietary 
 objects can be brought under one denominator, and 
 thus can be equally, and independently of their various 
 intrinsic uses, directed toward the most different ends. 
 It is as if money flowed in the veins of the thing, and a 
 stream of money proceeded out of it. Hence security 
 rights belong to the greatest achievements of humanity. 
 The most important of these security rights, the 
 pledge, will be dealt with in the theory of obligatory 
 relations (SchuldverhdUnisse) (p. 152). 
 
 SECTION IX 
 
 II. PERSONALITY AND THE ACTIVITY OF THE PERSON 
 
 1 . Rights in one's own person, or rights of personality, 
 must be the starting point of every legal system; for 
 e\'ery right requires a legal subject and whoever is a 
 legal subject must, as a personality, have the protec- 
 tion of the law. This applies to both physical and juris- 
 tic persons. Hence, whoever seeks to hinder the activity 
 of personality in the sphere allowed by law infringes 
 the right of personality, and must be restrained. 
 
 2. This right of personality expresses itself in par- 
 ticular in the activities of the personality both in and 
 outside the law. Personality must be permitted to 
 be active, that is to say, to bring its will to bear and 
 reveal its significance to the world; for culture can 
 thrive only if persons are able to express themselves, 
 and are in a position to place all their inherent capacities 
 at the command of their will. 
 
 We say that a person has the capacity to perform 
 juristic acts, to make wills, but also that he has the 
 capacity to walk, to ride or to produce immaterial 
 values; but these are not special rights, they are per- 
 
§9] PERSONALITY AND ACTIVITY 81 
 
 sonal powers, and whoever, without the consent of the 
 law, seeks to hinder their exercise infringes the right of 
 personality. 
 
 3. Consideration may be taken here, too, of the mani- 
 festation of the person as against the State, whether 
 it be in legal procedure, in administration, or in his 
 capacity as an organ of government ; all these are capa- 
 cities that arise out of the right of personality, and that 
 exist as long as the principle holds that personality may 
 develop itself. 
 
 4. In this way, especially, activities of the person in 
 public law have a mainstay in the right of personality; 
 they are the expansion of the powers contained in that 
 right, and the latter is their uniform source. It is a 
 mistake to split them up, and divide them into separate 
 single rights; and it is contrary to the fundamental legal 
 idea of the unity of personality with all its separate 
 powers, constituting a cultural entity which may assert 
 itself in the most various directions. 
 
 5. This compression into one right of personality, 
 of all the activities of the person, especially those in- 
 volved in public law and political life, is the key to the 
 whole conception of political rights. There is, indeed, 
 another view, that looks upon the individual as acting 
 as an organ of the whole, to which we shall return later. 
 The acceptation of anything else as the basis of political 
 rights is absurd. 
 
 6. Juristic persons also have rights of personality, 
 but in still another direction. The juristic person has 
 as its members the individuals that are connected with 
 it, so that these individuals have, in part, rights in the 
 profits, and, also, in part, in the administration and 
 activity of the juristic person. In the latter connection, 
 we speak of the rights of representation (Organschafts- 
 rechten), and understand under these the capacities 
 
82 TECHNIC OF LAW [Ch. V 
 
 that the individual has to participate in the conduct of 
 the juristic person and in all its vital functions. This 
 right is a personal one and is derived from the juristic 
 person, but it is assigned to the individual and is merged 
 in the latter's personality as long as he stands in a definite 
 relation to the juristic person. This point is more fully 
 explained in the "Lehrbuch des biirgerlichen Rechts," 
 to which we refer. 
 
 7. The activity of the person may be in lawful 
 acts (Rechtshandlungen) , or illegal acts ( Unrechtshand- 
 lungen) , or in neutral action. In lawful acts, it is essential 
 that the person, as a servant of the legal order, should 
 strive to bring about some change in the position of 
 things. It is characteristic of such acts, that they re- 
 quire a certain maturity of the person ; hence we distin- 
 guish between persons capable of acts, and those incapable 
 of acts. It also sometimes occurs that there is a 
 medium between these two, the restriction or limitation 
 of acts. Moreover, lawful acts have this in common, 
 that the human will and the law co-operate; the human 
 will giving the direction, on the one hand, and, on the 
 other, the law achieving the fuller development of what 
 arises in the legal order by reason of this will. This 
 combination of the human will and the law is not only 
 the peculiarity of these legal acts, but also their most 
 interesting phase. 
 
 8. Used in this sense, the will is not to be taken as 
 meaning the internal will, but the will that is active in the 
 external world. It is the law, however, that achieves 
 those results that appear to be especially suited, on the 
 one side, to serve the freedom of human will, and, on 
 the other, the welfare of the whole. Of particular 
 importance in this connection are the following prin- 
 ciples : 
 
 (a) Man's will must not be undervalued; for only 
 
§9] PERSONALITY AND ACTIVITY 83 
 
 if it possesses an important power in the law can per- 
 sonality expand, and, through this development of 
 individual personality, the full force of humanity's 
 powers be made effective. 
 
 (&) The social element, however, must also be con- 
 sidered, especially in connection with those transactions 
 which in their external operation are important as affect- 
 ing a multiplicity of vital, general interests. If here 
 one and the same transaction affects, not only one, but 
 several persons, it is best that not only the individual 
 will should be considered, but, above all, the meaning 
 which such declaration of the will receives in ordinary 
 usage; for the course of dealing may justly claim that 
 whoever participates in it must yield to it, and that its 
 declarations be understood in accordance with the 
 general custom. 
 
 (c) Good faith must be preserved in all directions; 
 that is to say, the general custom must be interpreted 
 as the declarations of an honest man, without reserva- 
 tions, as commonly understood. In particular, it must 
 be assumed that if anyone grants something he also 
 grants everything that is necessary to carry out the 
 first thing; and we must be able to depend on it, that 
 whoever consents to anything, will not put obstacles in 
 the other's way if the latter wishes to enjoy the promised 
 advantages; especially, we must have confidence that 
 if one gives a promise, he will not seek to render it vain 
 by crooked ways and underhand means. 
 
 (d) Otherwise, the law is free to attach those legal 
 consequences that seem good to it to juristic acts, with- 
 out being slavishly bound to the wills and opinions of 
 the parties; in the first place it can strive to further cer- 
 tain results, to prevent others, and to bring about such 
 a situation in legal life that all interests are reconciled 
 as far as possible. 
 
84 TECHNIC OF LAW [Ch. V 
 
 9. In earlier times people failed to understand that 
 the legal establishment is an intricate structure under 
 which the most various elements must be able to develop ; 
 and here, as well as elsewhere, it was thought possible 
 to control a whole mass of cultural phenomena with a 
 single principle. This shows the desperate condition 
 of earlier jurisprudence; it might be compared to a 
 technic that operated with hour-glasses, while we have 
 our chronometers. For this reason, twenty years ago 
 my statements were assailed and criticised, while today 
 no one would hold to the antiquated theories. 
 
 SECTION X 
 III. CLAIMS (Anspruch) 
 
 1. To the right corresponds the claim, that is, the 
 power to call upon another to perform something. The 
 theory of claims will not be discussed here, since it 
 belongs especially to the technic of the law; but one 
 point must be made clear: a claim exists only where 
 there is a definite power on one side, and a definite 
 obligation on the other, and when, therefore, a person 
 may be called upon, because of this obligation, to act 
 in the other's interests. Hence, a claim requires a 
 special relation which has been brought about as regards 
 this person by virtue of a legal process (Rechisvorgang) . 
 Only if thus understood is the conception of the claim 
 productive ; only thus does it aid in clarifying the theory 
 of the law. 
 
 2. At the present time, it is, indeed, grossly mis- 
 understood, and no other term has been more misinter- 
 preted. Most misleading of all are the following errors: 
 
 (a) The belief that an owner has a "universal claim" 
 against everyone "not to be molested." This is the 
 
§10] CLAIMS 85 
 
 most unproductive idea possible: a legal significance 
 attaches in granting a claim when someone has been 
 injured, a claim that the disturbance cease ; but as long 
 as one has not been molested, he must in turn leave the 
 world unmolested, and the idea of a claim against an 
 innocent passer-by who has not disturbed one at all is 
 monstrous. 
 
 (6) It is equally absurd to suppose that individuals 
 have a claim against the State requiring it to do every- 
 thing possible for them, in particular to aid them in 
 obtaining their rights. If the State performs its duty, 
 that is its reason for being; if the individual is entitled 
 to turn to the State, and the organs of the State are 
 maintained for the purpose of acting on his motion, 
 there we have, on one side, the exercise of the right of 
 personality, and on the other, the duty of the organs of 
 the State toward the people as a whole ; that is to say, 
 they are active in the interests of all, as well as of the 
 individual. To recognize a claim in such a case, a 
 claim, moreover, of any person against any State, again 
 is an entirely false interpretation of the idea of the 
 claim, which is by no means rare among writers, because 
 they use the word claim without having assigned a 
 definite conception to it. This is due to the lack of 
 juristic method and discipline, which, it must be admit- 
 ted, in view of the present state of philosophic education, 
 is just as little striking as the self-glorifying superiority 
 which it was thought necessary to assume toward me, 
 in announcing such important teachings to the world. 
 I have no reason to enter further into such wrong-headed 
 and unsettled misinterpretations; for, because I rejected 
 the claim to legal protection {Rechtsschutzanspruch), 
 it was declared that I, the defender of the parliamen- 
 tary system of government, was an exponent of the 
 absolute State. I consider it superfluous to make any 
 answer to such a statement. 
 
86 TECHNIC OF LAW [Ch. V 
 
 SECTION XI 
 IV. LEGAL ORDER 
 
 1. Sources of the Law 
 
 1. The means by which a legal system brings the 
 law into form are called sources of law. They appear 
 in the unconscious organization of the nation, and in its 
 conscious decrees, which first sprang from the law of 
 the chief — ■ in laws. 
 
 2. The difference between customary law (Gewohn- 
 heitsrecM) and a law (pesetz) is not an absolute one. 
 A great deal of customary law will creep into the inter- 
 pretation of the laws, while, on the other hand, in many 
 directions, the laws will determine customary law. 
 
 3. A fuller exposition is given elsewhere ("Lehrbuch 
 des burgerlichen Rechts", I. p. 78 f., 85 f.). 
 
 2. Equity and Law 
 
 1. As far as possible, the law must be so constructed 
 that it is elastic enough to meet the just requirements 
 of the individual case, in order to avoid a disagreement 
 between the technically logical result, and the ethically 
 juristic requirements. E^en Aristotle, as long ago as 
 in his time, dealt with this contradiction. He speaks — 
 in the fifth book of the Nicomachaean ethics — -of equity 
 and law, and declares that equity bursts forth when 
 the law with its average principles leads to a result 
 at variance with the idea of justice. 
 
 This disagreement may be avoided in several ways. 
 A special law of equity (Billigkeitsrecht) may be estab- 
 lished, which, however, becomes in turn logically for- 
 malized law, and, therefore, is inadequate to fit all 
 cases; for, as soon as it envelopes itself in the form of 
 logical law, it too suffers the fate of being insufficient, 
 in the ramifications of its ideas, to the demands of 
 
§11] LEGAL ORDER 87 
 
 justice. Or the expedient may be adopted of framing 
 legal judgments so elastically that they are able to 
 meet the demands of the individual case. 
 
 The former method was represented in earlier legal 
 systems (Roman law, English law); the latter is what 
 our modern legal structure is striving towards. 
 
 2. This is not feasible everywhere, however; the 
 determination of the law frequently requires that finer 
 points and adaptable suppleness give way to a certain 
 coarsening in the interest of greater facility in handling 
 it. The law must be recognized and applied not ■only 
 by the judge, but also by the people in their activities; 
 hence, it is often undesirable that it should develop 
 in conformity to criteria that are difficult to perceive 
 and to comprehend. However much it may offend the 
 finer senses of the jurist, coarse forms must sometimes 
 be allowed to take the place of delicate ones, because 
 the latter would perish beneath the strong breath of life. 
 
 This has already been dealt with above, (p. 30 (5).) 
 
 3. Such a coarsening (Vergroberung) is also especi- 
 ally necessary, because the law forms a part of human 
 life, and disagreements in the law exasperate the people 
 and sow the seeds of discord. Consequently, if the 
 law is so constructed that hundreds of disputes can be 
 avoided, it is of great benefit; and a system of law 
 that inclines in this direction is better than a nicely exact 
 system that constantly involves the people in quarrels 
 and conflicts. 
 
 3. Dual System of Acquiring Legal Rights 
 
 1. Not seldom a double legal order is necessary, 
 when certain persons who deal with another must be 
 treated as if they were dealing with the truly entitled 
 subject (Berechtigte) , even if the person with whom 
 they have made or disputed an agreement was not the 
 
88 TECHNIC OF LAW [Ch.V 
 
 entitled subject. It is very often necessary that certain 
 persons should carry the badge of title (Berechtigungs- 
 zeichen), once for all; and that, by virtue of this sign, 
 the legal relations into which others enter with them 
 should be valid and binding and should bind the person 
 truly entitled. We can imagine, for instance, a case in 
 which a debtor, in ignorance of the fact that the claim 
 has been transferred, pays his original creditor; or a 
 case in which someone has obtained possession of a 
 certificate of inheritance (Erbschein) (bonorum pos- 
 sessio), and is regarded in the course of dealing as the 
 heir, so that contracts made with him are binding on 
 the inheritance. In this connection the principle also 
 applies, that the heir of a person who has been declared 
 dead is treated, in dealing in respect to the inheritance, 
 as if he were the real heir; even if a mistake has been 
 made and the person who has been declared dead is 
 still living. 
 
 2. The double legal order permits the third person, 
 who enters into relations with one who bears the sign 
 of title, afterwards to choose whether he will accept the 
 title of this person, or whether he will disregard the 
 apparent title and recognize the true right. 
 
 3. From this basis, cases arise in which the double 
 legal order has been so unified as not to give the third 
 person the choice between the one or the other legal 
 order but to make the person with the insignia of title 
 the only determinative one. So it has come about 
 that a person who purchases movables in good faith 
 may, under certain circumstances, become their owner; 
 although the seller did not own them, but assumed 
 such a position in the transaction that he had to be 
 regarded as the person entitled to sell them. It is the 
 same with rights based on a land registry {Grundbuch- 
 recht) ; whoever buys in good faith by reason of an entry 
 
§11] LEGAL ORDER 89 
 
 in a land registry obtains title just as if the entry were 
 correct. 
 
 4. A dual system of acquiring legal rights has cer- 
 tain disadvantages, especially a certain insecurity, and 
 this is not always advantageous for the law; hence it can 
 easily be understood that in this matter, particularly as 
 regards the purchase of property, that course is adopted 
 which best conforms to the interests of commerce.' 
 
 4. Contingency and Legal Order 
 
 1. Everywhere in the law chance must be excluded, 
 as far as possible; and to every man should be secured 
 what falls to him according to his interests. It must be 
 admitted that this principle is merely a formal one, for 
 what is due the individual is determined by the valua- 
 tion that the legal order bestows upon his interests; 
 this varies, however, according to the level and concep- 
 tion of culture. Yet, even this formal principle is of 
 importance, in that the law should have no secret folds 
 out of which more or less might flow to the one or the 
 other ; but, rather, that everything should be distributed 
 in accordance with value and worthiness. 
 
 This is the system of proportionateness of which Aris- 
 totle speaks when he says that it is a part of justice 
 that every man should receive what is due him; injus- 
 tice consists in this, that the one presumes beyond what 
 is due him. Thus did the sage of olden time give 
 expression to the principle that the law must remain as 
 far removed as possible from all chance, and that every- 
 one should receive what is due him according to his 
 position in legal life. 
 
 This principle appears especially in the following: 
 
 2. In many cases, changes in rights take place, which, 
 
 according to the principles of the law, cannot be avoided, 
 
 ' It would be a mistake, however, to reject entirely the double legal 
 order on this ground. I have explained the idea in the "Arch, f . b. Recht," 
 XXIV, p. 179. 
 
90 TECHNIC OF LAW [Ch.V 
 
 yet which involve a certain injustice in themselves 
 because they bring about a displacement of values, for 
 which there is no adequate reason. Thus, it may be 
 that in some way, A becomes the owner of B's thing, 
 because the interests of the course of dealing with real 
 rights demand it. Such is the case, for instance, if a 
 thing belonging to B becomes a component part of a 
 thing belonging to A ; in this there is, of course, no 
 economic injustice, but there is injustice in respect to 
 the values; for if the law of things desires such an acqui- 
 sition of property, it cannot by this conceal the fact that 
 it is without reason if, in this manner, the one becomes 
 richer by the acquisition of value and the other poorer 
 by its loss. Justice, in such a case, lies in the real 
 result (dinglicher Erfolg) for which the legal order strives ; 
 it does not lie in the result in values (Werterfolg) that is 
 connected with the real result, and which, on the con- 
 trary, is unjust. But in a number of other cases, a dis- 
 placement of values takes place which is not justified 
 by the circumstances ; for instance, if something is made 
 over to someone with certain reservations ("conditions") 
 and these reservations are not realized. But the prin- 
 ciple of equalization becomes still much more important 
 in the case of wrongs, where one has injured another by 
 wrong-doing. The legal necessity then arises of trans- 
 ferring the damage from the person who has been 
 injured to the person who has caused the injury, wholly 
 or partially, according to the measure of his guilt and 
 the circumstances of the injured person. In this con- 
 nection unlawful acts are meant, and the necessity of 
 comf)ensation is apparent. 
 
 This equalization is spoken of by Aristotle in the fifth 
 book of the Nicomachaean Ethics as one of the principal 
 tasks of justice. Both when by illegal action, and when 
 by legal events an unjustified displacement of values 
 
§11] LEGAL ORDER 91 
 
 takes place, equalization is necessary: this is one of the 
 higher missions of the law. 
 
 3. This is true, of course, only when the displace- 
 ment of values turns out to be unjustified, not when, in 
 spite of a certain degree of harshness, an inherent justifi- 
 cation is found in it ; as for instance, if in consequence 
 of the lapse of time one suffers legal disadvantage. In 
 this case, the legal disadvantage is founded on the work- 
 ings of the law itself, hence there is no need of equaliza- 
 tion ; for by another legal idea the law is declared to be 
 determinative and decisive to meet the present situa- 
 tion. And also if, for instance, the law determines that 
 no adjustment shall be made, even if it is a question of 
 immoral acquisition in which the acts of both parties 
 were immoral, this is equivalent to declaring that the 
 law has already been compensated and that, for higher 
 reasons, the acquisition, though unjust in itself, must 
 stand ; that is, it becomes just. 
 
 4. A special form of equalization is the elective com- 
 pensation (Wahlrechtsausgleichung). Legal security and 
 legal convenience often make it possible for a creditor to 
 choose one or another of his debtors and to require pay- 
 ment of him. If, on the one side, this is an advance in 
 culture, on the other, it is an injustice, if chance decides, 
 and the person from whom the creditor demands pay- 
 ment is really finally encumbered with the debt. There- 
 fore it is provided in the case of joint obligations that 
 every debtor who has performed, has recourse (Ruck- 
 griff) for contribution against his co-debtors to bring 
 about a condition of affairs, as if each had paid or con- 
 tributed his proportionate share. This system is directed 
 towards accomplishing the same ends as the defense of 
 partition (Einrede der Teilung), but it has the great 
 advantage of not injuring the creditor: the creditor has 
 the right of free choice, and the debtors must settle the 
 matter among themselves. 
 
92 THE LAW OF PERSONS [Ch.vi 
 
 SPECIAL PART 
 A. THE LAW OF INDIVIDUAL PERSONS 
 
 CHAPTER VI 
 THE LAW OF PERSONS 
 
 SECTION XII 
 
 I. THE LAW OF CLASS 
 
 1. Slavery 
 
 1. Slavery is not, as might be supposed, evidence 
 that culture is lacking, but exhibits considerable 
 economic progress; for in periods in which economic 
 life is but slightly developed, no need of slaves is 
 felt. The household is limited in accordance with the 
 needs of the family and the addition of servants would 
 mean only the increase of family cares and would make 
 it necessary to divide the meager proceeds of industry 
 among a greater number of consumers than formerly. 
 It is not until there is a more developed and growing 
 agricultural or industrial life that the need is felt of 
 slaves as workers in agricultural or industrial pursuits. 
 But when once this point is reached, the need of slavery 
 is so strong that the people would risk everything in 
 order to add to their working force in this way. Wars 
 are carried on for the sake of taking slaves; raids are 
 made, or people belonging to some particular class are 
 oppressed, tormented, and driven by various economic 
 abuses into becoming slaves and rendering a slave's 
 obedience and service. 
 
§12] THE LAW OF CLASS 93 
 
 2. However, slavery has still another, a religious 
 significance: the human sacrifice is generally a sacri- 
 fice of slaves. Slaves have been kept for the special 
 purpose of being slaughtered as a sacrifice to gods or 
 spirits, walled up when a house was being built, or 
 offered to the gods of the harvest before a new field was 
 planted. 
 
 3. Before the rise of technical, especially of industrial 
 arts, slavery was the only means of obtaining a divi- 
 sion of labor on a large scale in a uniform undertaking, 
 for works of that kind require distinct subordination, 
 monotonous and steady exertion, tasks which the work- 
 man dislikes, and absolute discipline and order, such 
 as were impossible among free persons in those times. 
 Even the oarsman in the rowing bank could scarcely 
 be a free person; for everywhere that enterprises re- 
 quiring mass labor were set on foot, slaves could not 
 be dispensed with, since machines were wholly lacking. 
 
 4. Hence, no one who looks at the matter entirely 
 from the standpoint of our day, or of human rights, will 
 be able to appreciate slavery in its historical develop- 
 ment. Human rights are not advantageous to every 
 development: technical arts must advance, humanity 
 must make progress in industrial life, and for centuries 
 this goes on with the sacrifice of human life. The sacri- 
 fice to culture is the highest sacrifice that the individual 
 can make, but it is also one that he must make. 
 
 5. Slavery may develop into semi-slavery or bond- 
 age: 
 
 (a) One kind of bondage is pledge service (Pfand- 
 lingschafi) in which the debtor works off his debt ; as 
 he is only temporarily a slave, his lot is lightened. He 
 is bound to service but is not without rights. 
 
 (b) Also in other cases, however, experience has 
 taught that a slave will do more if his interest is aroused 
 
94 THE LAW OF PERSONS [Ch.vI 
 
 and he is given a "peculium" which he may use, or 
 own, or partly own. Thus it is in agriculture where 
 the slave is allowed to possess a small tract of land; 
 thus, too, it is in trade and commerce: he has then to 
 pay his lord a certain annual fee. 
 
 (c) Certain circumstances lighten the slave's con- 
 dition : 
 
 (aa) The possibility of buying his freedom develops. 
 As soon as the slave appears as so much capital, the 
 interest on which is represented by his annual service, 
 the thought immediately follows that he can substitute, 
 for himself to his master, capital in money: the sum 
 with which he purchases his freedom. 
 
 (bb) The female slave is often the concubine of 
 her master; she and her offspring therefore attain a 
 better position. The sexual relation here, as everjTvhere, 
 is connected with strong psychic influence: the lord 
 does not want his concubine to become another's slave 
 after his death. Therefore she becomes free when he 
 dies, and her children are, if not entirely free, at least 
 half-free. 
 
 (cc) The slave is allowed to have his wife and family. 
 Thus family life develops: the family is not to be sep- 
 arated, its circle shall not be interfered with. 
 
 {dd) The house slaves become a part of the house- 
 hold, and the intimacy and confidence that thus grows 
 up between them and the family make them indis- 
 pensable; often the family is at the mercy of their 
 loyalty and discretion. 
 
 (ee) Slaves even play a political part. They conduct 
 the most important and responsible affairs and thus 
 attain a firm and unshakable position. 
 
 (Jf) Note should be taken, also, of the Bondo-Recht, 
 that is the competency of the slave to change his master 
 if he wishes — an institution to which we shall return 
 later. 
 
512[ THE LAW OF CLASS 95 
 
 6. With the coming of semi-slavery the following 
 changes occur: the slaves become free in principle, and 
 the services that they are required to perform take 
 on another aspect. Such services are then no longer 
 borne in the consciousness of bondage, but are regarded 
 as imposed tasks which encumber the slave class and 
 against which class feeling gradually comes to rebel. 
 The place of the agricultural slaves is filled by free 
 peasants, that of the artisan slaves by technical work- 
 men — with the cessation of their special duties and 
 liabilities they join the middle class. Work now be- 
 comes ennobled. 
 
 7. To this appreciation of work the ancients attained 
 only in exceptional cases; this is shown especially in 
 Aristotle's "Politics," who, by the way, had a deep 
 historical comprehension of the whole question of 
 slavery. 
 
 He fully recognized that in the industrial life of the 
 ancients slavery was a necessity; and his famous asser- 
 tion, that if the weaver's shuttle worked of itself, no more 
 slaves would be necessary, is the best explanation of the 
 whole institution. Yet, we must reply to this ancient 
 thinker that physical labor, especially if it is carried out 
 with care, attention, and skill, and if the workman has 
 a psychic interest in the result, so that he works with 
 body and mind, by no means lacks nobility and dignity. 
 Consequently, from our point of view, it is wrong to 
 say that persons who perform physical labor must be 
 without rights, so that they may be regarded only as the 
 organs and tools of their master. Moreover, Aristotle 
 too admits that a distinction must be made between 
 slavedom (Sklaventum) as a natural institution, and 
 actual slavery, and that it by no means follows that all 
 tiiose persons who were slaves according to the law were 
 also destined by nature to be slaves. 
 
96 THE LAW OF PERSONS [Ch.VI 
 
 2. Nobility 
 
 1. The nobility is a favored class among a people, 
 favored partly in political position, partly under civil 
 law, and favored, too, by various honorary rights and in 
 divers other ways to its advantage. Such a nobility has 
 arisen in various ways, most commonly by one people 
 conquering another and treating the native inhabitants 
 as a lower class. But also royalty and the priesthood 
 have frequently been sources of the nobility: as regards 
 royalty, either by raising up the relatives of the royal 
 house to the nobility, or by ennobling those in the king's 
 service; as regards priesthood, because priests were 
 
 » originally looked upon as possessing special spiritual 
 endowments whereby they formed a nobility of a par- 
 ticular kind, which was perpetuated in their descend- 
 ants, as people supposed the priestly gift to be hereditary. 
 Frequently, also, possessions ennoble, especially the 
 possession of much landed property; and sometimes a 
 certain piece of property carries a noble title with it, 
 and gives the possessor a prominent position. 
 
 2. The privileged members of the nobility are raised 
 to a still greater height by the fact that their marriage is 
 subject to a special restriction; that is to say, a noble 
 can marry only one of equal birth. 
 
 3. The existence of a nobility is justified as long as it 
 serves the progress of culture. If the nobles form a 
 higher race, as, for instance, the Aryan Hindoos as com- 
 pared with the native population, not only is a preferred 
 rank justified, but also the principle, that the mixing of 
 the two, which would lead to a degeneration of the race, 
 is to be strictly avoided, is perfectly right. In addition, 
 the nobility, by reason of its class feeling, its wealth, 
 its relations with the home and foreign governments, 
 has the opportunity of observing the things of life from 
 
§12] THE LAW OF CLASS 97 
 
 a higher plane. If the nobility feels itself obliged, be- 
 cause of its preferred position, to render special service 
 to the State, and to attain to high achievements, that 
 alone proves it to be a pillar of cultural order, and hence 
 fully justified ; for, like all classes, it must maintain itself 
 by constant achievements. 
 
 4. Here, too, an equalization of the classes will 
 gradually take place; the upper middle class will rise 
 to the nobility in its manner of life, its wealth, and its 
 insight; and thus it may happen that the distinction 
 between the two loses all actuality, and can only be 
 artificially preserved. One point may come under con- 
 sideration: if it is assumed that the members of the 
 princely houses belong to a higher nobility, it may be 
 justifiable to regard their marriages with persons of 
 equal birth as the only proper ones; for, on the one 
 hand, it is to the advantage of the nation if the different 
 States are thus connected, and, on the other, constant 
 intercourse in higher positions may extend the view of 
 such persons and make them better fitted to rule than 
 others. Moreover, just as marriage connections with 
 royal houses may be advantageous, those with other 
 families may possibly be detrimental ; middle class fami- 
 lies finding their way into the government in a manner 
 that is not in accordance with the material interests of 
 the realm and the universal culture of the people; as, 
 for instance, if the daughter of a capitalist should be- 
 come queen, which might lead to the unjust advantage 
 of individuals and great injury to the country. 
 
 In this lies the reason for the difference between the 
 higher and the lesser nobility, and the basis of the asser- 
 tion, that if laws relating to equal birth still exist today, 
 they should apply only to the higher nobility, so that 
 it is entirely unjustifiable to consider the lesser nobility 
 of equal birth. 
 
98 THE LAW OF PERSONS [Ch.VI 
 
 Our unphilosophic age has failed to comprehend this, 
 as it has so much else, and has given decisions showing 
 that concern for a mass of insignificant trivialities has 
 caused people wholly to misapprehend the spirit of 
 history. 
 
 SECTION XIII 
 
 II. FAMILY LAW 
 1. General Remarks 
 
 1. The propagation of mankind is, of course, the first 
 condition for the development of human culture — ■ 
 in fact, propagation in an increased proportion — for 
 culture requires the aid of all forces, and the great talents 
 that emanate from the mass can only arise from an exten- 
 sive base of population. This is why nature has endowed 
 man with such a powerful instinct of reproduction, that 
 it may be called the strongest and most irresistible of 
 all our instincts. The legal institutions that regulate 
 human reproduction, and in this way are intended to 
 preserve the perpetuation of the human race, are there- 
 fore of the very greatest importance; in fact, they may 
 be termed the most important that humanity possesses. 
 
 2. The reproductive activity of human beings, how- 
 ever, corresponding entirely to human nature, is con- 
 nected with a vast number of psychic emotions, feelings, 
 desires, pleasure and suffering, and therefore involves 
 an abundance of idealities which, in the relations that 
 are grouped about reproduction, may reach the most 
 sublime development. Any treatment of the institu- 
 tions that concern propagation that does not cultivate 
 and advance these relations not only errs, but it degrades 
 mankind. Hence, nothing could be more abominable 
 than the way in which Natural Law in the seventeenth 
 and eighteenth centuries treated marriage as a kind of 
 
§13] THE LAW OF CLASS 99 
 
 breeding institution, and declared the only important 
 thing to be that the propagation of human beings should 
 go on under suitable conditions and the children be 
 properly brought up. Still more detestable is Kant's 
 view which regards marriage as a lease of the sexual 
 organs — a brutality that will ever remain a blot on 
 German thought.' 
 
 3. The psychic emotions that are connected with 
 reproduction are feelings of the most intense affec- 
 tion and self-sacrifice in which each individual lays 
 aside his egoism and desires to devote himself entirely 
 to the welfare of the one he loves. This affection leads 
 to an intermingling of the two lives, each one seeking to 
 understand the other, and to devote to him his best self, 
 so that two souls become as one, and each finds in the 
 other its necessary supplement. As a result, the cul- 
 tural aspirations gain tremendous power, and personality 
 expands in all directions. 
 
 4. In this way, the legal institutions that surround 
 reproduction may have a moderating and quieting influ- 
 ence, and, on the other hand, they may act as a stimulus 
 to culture and the mind, besides vitalizing and furthering 
 activity. But, they gain a still more extensive back- 
 ground, through the fact that from the very beginning, 
 even before man became man, nature has endowed at 
 least the female parent with a natural love for her chil- 
 dren, who seem to her like a part of herself and in whose 
 development she finds again the first beginnings of her 
 psychic life and the long forgotten recollections of her 
 own youth. In this direction, too, these institutions may 
 become a source of the purest joy; they can lead to 
 idealism and to self-sacrifice by means of which not only 
 the perpetuation of mankind is assured, but also the 
 greatest possible development of its forces is advanced. 
 
 • See my presentation in "Mann und Weib," II, p. 272 f. 
 
100 THE LAW OF PERSONS [Ch.vi 
 
 5. The institution the purpose of which is to serve 
 propagation and all the psychic impulses and ideals that 
 surround it, is marriage. Its development and the form 
 it took among the different nations is one of the most 
 fascinating studies of scientific research ; but we cannot 
 follow it here. Nor can we deal at length with its original 
 form, group-marriage, in which reproduction took place 
 in groups, the members of which were married to a group 
 of husbands and wives, both men and women being 
 common husbands and wives. This has been elsewhere 
 authenticated, and we need only add, that when people' 
 seek to refute the fact by pointing out the sexual rela- 
 tions that exist among the anthropoid apes, etc., that 
 live in small companies, we may reply that it is a char- 
 acteristic of mankind to strive and work together in 
 larger numbers, and in earlier times the form of marriage 
 that corresponded to this mode of life was not monogamy 
 but group-marriage. 
 
 Group-marriage may lead to polyandry, a form 
 that is still found among a large number of peoples, 
 a common custom being for several brothers to have 
 but one wife. This has certain psychic advantages, 
 but also the weighty disadvantage that it decreases 
 the population — especially when it is combined with 
 the slaughter of the female children, the only means 
 of explaining the consistent carrying out of such a 
 system. 
 
 Much more frequent, in later periods, is polygyny (or 
 polygamy) which follows naturally in the wake of capture 
 and purchase marriage ; for, whatever a man takes pos- 
 session of, or acquires in this way, he regards as his own. 
 The great expense of such a custom, however, often 
 interferes with its practice; and it must, therefore, be 
 regarded, even among the peoples that permit it, as an 
 exception, not as the rule. 
 
§13] FAMILY LAV^ V -^ /lOl 
 
 6. The civilized peoples of today aresfilrply divided 
 into nations of Christian and nations of Mohammedan 
 culture. While Mohammedan culture has retained 
 polygamy, all Christian peoples have adopted monogamy, 
 and regard this institution as such an essential principle 
 of their cultural order that they have declared bigamy 
 to be a grave, major crime. The cultural idea that under- 
 lies this, is that a mutual psychic intermingling of lives 
 is made possible only by the self-restraint of two indi- 
 viduals, and that a plurality of wives must lead of 
 itself to the basest passions, to an egoistic self-assertion 
 that poisons marriage, and to constant petty jealousies, 
 suspicions, and prejudices, unless the wives are in com- 
 plete subjection, and consequently are mentally inferior 
 and without self-assertion — a condition that is equally 
 detrimental to all development; for it is an irretrievable 
 loss to humanity, if it lacks woman's spiritual cultural 
 effort. 
 
 7. High idealism moved the nations when they at- 
 tained to the conception that monogamous marriage 
 must be a marriage for life and death, that is, that the 
 surviving spouse must remain true beyond the grave. 
 
 ". . . wir fahren zum Leben zum Tode, 
 Uns lockt ein einsames Bild." 
 
 This has frequently led to the practice of suttee, the 
 wife following her husband into the grave. But this 
 strained idealism has been given up; for it meant a sacri- 
 fice of the future to the present, and is at variance with 
 human nature which in a high degree is subject to the 
 power of time; so that even the most idealistic affections 
 weaken with the passing of the years, lose their actuality, 
 and retreat into the realm of happy recollections. For 
 this reason, there can be no objection from an ethical 
 standpoint to a second marriage; frequently practical 
 circumstances make one advisable, and it is often a prop 
 
102 THE LAW OF PERSONS rcH.VI 
 
 and stay during the rest of the life of the bereaved man 
 or woman. 
 
 8. One of the most important questions in this con- 
 nection is that of the indissolubihty or dissolubility 
 of marriage; and here, too, a strained idealism com- 
 manded absolute indissolubility, largely, to be sure, 
 because of the belief in the mystical union of souls which 
 no act of man could disunite. But this idealism, too, 
 could not always be maintained, and the sublime idea 
 of indissoluble marriage falls before the realities of 
 life; for, as high as is the ideal significance of mar- 
 riage, just as great are the demands that it makes of 
 those who enter into it, and just as great are the dangers 
 to which it is subject in consequence of differences 
 in human nature, and of the impossibility in some cases 
 of two persons laying aside their peculiarities and 
 adapting themselves entirely to each other. In such a 
 case, marriage may be not only a cause of misery and 
 suffering, but it may hinder psychic development, and 
 great talents and remarkable minds thus be crushed 
 and crippled. This is a frightful danger, and in order 
 to avert it, to some extent, actual separation was allowed 
 in such a case — the least that could be done to avoid 
 constant torture and cruel suffering, the distress of daily 
 excitement and worry. When this is so, however, 
 there is no ethical i-eason for upholding the marriage, 
 apart from consideration for the children, who them- 
 selves scarcely can thrive under such home conditions. 
 To dissolve the marriage in such a case is an urgent 
 cultural necessity. 
 
 9. The question has been asked, whether the dis- 
 solution of the marriage is not a matter for settlement 
 by the married couple themselves, or even if it is not 
 a matter of free individual choice, so that marriage 
 would really give place to free love. In answer to this, 
 
§13] FAMILY LAW 103 
 
 it must be said that freedom of this sort would be in- 
 jurious to the majority; for such freedom, too, is an ideal 
 that would come to grief in consequence of the imper- 
 fections of human nature. Marriage involves not 
 only joys and pleasures, but also difficult duties and 
 responsibilities which an individual must take upon him- 
 self even though he feel them to be a burden. Especi- 
 ally, if either the husband or wife becomes ill, and in 
 need of help, it is one of the most solemn marriage 
 duties of the other to render aid, to comfort, and to 
 alleviate suffering. In these cases, simply to dissolve 
 the marriage would be a heartless barbarism, and in 
 direct contradiction to the highest duties of humanity; 
 for only when men learn to alleviate the suffering of 
 life, will it be possible fully to develop their forces, and 
 gifts ; suffering natures, in particular, are often persons 
 of deep and remarkable mental power. And in other 
 ways, too, it is advantageous for humanity, if the 
 individual is protected against himself, and cannot 
 easily give rein to passing moods and momentary im- 
 pulses: hence marriage should be dissoluble only for 
 the weightiest reasons. The constant fear and anxiety 
 that a person would experience, who was daily and hourly 
 subject to a one-sided decree of separation spoken by 
 a partner, perhaps of coarser fibre, would result in men- 
 tal torture that would form a strong hindrance to culture. 
 10. The formalities of the marriage contract, and 
 the conditions under which it is dissolved, belong to 
 each nation's own particular system of law. 
 
 2. Exogamy 
 
 1. As a survival of the system of group-marriage, 
 the principle remained, that marriage should not take 
 place in the same group, but in another. This was 
 accomplished as follows: 
 
104 THE LAW OF PERSONS [Ch.VI 
 
 2. A member of the group A was obliged to marry 
 a member of the group B\ this is called exogamy; and 
 a distinction is made between positive and negative 
 exogamy. In the former, a certain group is designated, 
 from which the man must choose his wife ; in the latter 
 he may not marry in his own group, but he may marry 
 a woman out of any other. WTien the group system 
 and totemism decayed, the principle was retained 
 that no one should marry one of his immediate kin, 
 and a certain remoteness of relationship had to exist 
 before a marriage was permitted. This system has 
 transplanted itself more or less into civilized ages; in 
 such a manner, however, that the group of persons be- 
 tweea whom marriage was forbidden has shrunk more 
 and more; so that the circle of those who might marry 
 each other has grown ever wider. But, to a certain 
 extent, the system of exogamy has remained, especially 
 in this, that marriage between brothers and sisters, 
 between parents and children, and between certain de- 
 grees of relationship in law, is forbidden. This is not 
 entirely without reasonable foundation. One reason is 
 of hygienic nature: it is assumed that there is reason 
 to fear that marriage between immediate relatives leads 
 to degeneration or to sterility; certainly physical and 
 mental family defects should not be accentuated by 
 such marriages, but should be effaced by marriage with 
 members of other families. A second reason is that 
 different families should form some connection with 
 one another, so that the structure of the State may be 
 firm and close, and not shaken by friction between the 
 various clans or families that compose it; and there is 
 no firmer tie than that formed by marriages between 
 different famiUes. A third reason is ethical in character. 
 The development of sexual passions within the imme- 
 diate family circle must be prevented, and this can be 
 
§13] FAMILY LAW 105 
 
 best accomplished by making sexual relationships in 
 the family itself detested, so that sexual life between 
 members of the same family may be inconceivable. 
 In this way, culture has artificially created a horror 
 naturalis — a phenomenon of frequent appearance; cul- 
 ture creates a second nature, of which, however, the 
 philosophy of law in earlier times had not an inkling. 
 
 3. Family 
 (a) Organization. 
 
 1 . The family is bound up with the institution of mar- 
 riage: the relation of children to their parents is one of 
 the most important problems of humanity; in the first 
 place, because the children require long continued train- 
 ing and education; and then, because the preservation 
 of the family tie, even after the children's education is 
 completed, is of the highest importance. 
 
 2. The continuance of family feeling after the chil- 
 dren are grown is of the greatest value to humanity; 
 indeed, it stands above all other bonds. On the one 
 side, there is the natural blood-tie, on the other, the close 
 association that has been established during the years .of 
 education; both together produce a natural under- 
 standing, a harmony of conduct, which should not be 
 lost, but should be cultivated in later life as a lasting 
 common tie and as a pledge of self-sacrificing effort for 
 humanity. (Compare p. 108 (2).) 
 
 3. The nature of family feeling will differ, according 
 to whether it is the relation to the mother, or to the 
 father, that is determinative. We, from our point of 
 view, combine both relations, and can scarcely conceive 
 of the time when such a combination was considered 
 impossible; and yet this was the case. As the mother 
 and father belonged to different families, the combina- 
 tion of matriarchy and patriarchy was necessary to 
 
106 THE LAW OF PERSONS [Ch.VI 
 
 bring the child within the membership of both families. 
 But that was impossible in times when each family lived 
 to itself, and each family circle formed a separate social 
 and political unit which maintained its interests one- 
 sidedly, and expressed them, as far as the other families 
 were concerned, in every way, even in disputes and war. 
 The struggles of those ages are mostly family wars, 
 family fighting against family. Under such conditions 
 it was, if not inconceivable, at least not feasible for one 
 person to belong to more than one family, and hence 
 be committed to both sides in case of war. An individual 
 who belonged to more than one family was in a position 
 similar to the sujet mixte of today who belongs to 
 two countries; a state of things which does indeed exist, 
 which is everywhere regarded as deplorable, and to be 
 avoided if possible. 
 
 4. The oldest tie was that of the child to the mother 
 and to the maternal family,^ which is easily compre- 
 hensible; for the child is borne by the mother, is often 
 nourished by her for years, and in its early youth is 
 entirely in her care. At the same time, the women are 
 the keepers of the home; whereas the men wander 
 about, and are often absent, especially in times of war. 
 Under such conditions, matriarchy is the only rational 
 arrangement, and it was therefore formerly quite gen- 
 eral. Not until later, especially under the influence of 
 wife-purchase and rape, but also for other reasons which 
 will be discussed elsewhere, did matriarchy give way to 
 patriarchy and the child belong to the father and the 
 father's family. This was the plane reached by the cul- 
 tural legal systems of the ancients, in Indian, Greek, 
 Roman, and Germanic law, and the law of the Eastern 
 Asiatics; and this was the condition that prevailed 
 
 • Only the complete misunderstanding of ethnology and comparative 
 legal science can lead to a contrary assertion ; refutation is superfluous. 
 
U3) FAMILY LAW 107 
 
 during the time that the greatest formations of culture 
 among the nations were accompUshed. 
 
 5. Patriarchy has great advantages over matriarchy. 
 Under the latter system, the child belongs to the mother, 
 but it also belongs to the mother's relatives; that is, 
 to those who have the same mother as the child's mother; 
 hence, especially, to her brothers, so that the relation 
 between maternal uncle and nephew is the closest that 
 exists between two men. This relation is a natural one 
 only if the mother lives with her brothers, so that brother, 
 sister and sister's child form one household. But such 
 a state of affairs cannot be maintained; as soon as the 
 peoples become nomadic and consequently scatter, it 
 becomes unendurable for the husband to stand apart. 
 Then, of course, if the reproduction of children is to 
 continue, the husband must live with his wife and 
 child; the uncle, on the other hand, lives perhaps in a 
 quite distant district, follows other aims, and has no 
 intimate relations with them. Under such conditions, 
 the closer the marriage and immediate family relation 
 becomes, the more the child, as soon as it needs the 
 guidance of a man's hand, will attach itself to the father, 
 and the more contrary to nature it must appear if the 
 man to whom the child turns is not its father. If the 
 father belongs to family A, the child to family B, the 
 seeds of discord already exist in the heart of the house- 
 hold : in case of war between the two families father and 
 son stand on opposite sides. Such conflicts in a circle 
 in which the greatest loyalty and undivided confidence 
 should rule, poison the whole relationship from the 
 beginning. 
 
 Another solution would only be possible, if the wife 
 were the head of the house, and she and her political side 
 determined the whole relation. This system, has, indeed 
 existed; it is called gynarchy, but it has always been 
 
108 THE LAW OF PERSONS [Ch.VI 
 
 rare, and was soon recognized as contrary to nature. 
 Women have other tasks than that of ruling, and other 
 qualities than the persevering consistency that the life 
 of a ruler demands. Hence, it will be the rule for the 
 husband to be the head of the house, and the unnatural 
 condition that arises if the children are removed from 
 his circle of government will always be felt as a tremen- 
 dous hindrance to the development of family life. There- 
 fore, only those nations in which the father's right was 
 paramount have been capable of fulfilling the higher duties 
 of national life ; they alone have had the inherent strength 
 powerfully to resist storms from within and without. 
 
 (b) Family Education. 
 
 1. The bringing up or training of children took place 
 in the family from the beginning. During the period 
 that group-marriage was general, it took the form of 
 exchanging children to a greater or less extent, so that 
 one or another member of the group was made respon- 
 sible for one or more children. When monogamy became 
 customary, the child remained with its parents, and such 
 an intimate relation between them and the children was 
 thus developed that the strongest tie was formed. The 
 unity of blood corresponded to the unity of all vital rela- 
 tions. 
 
 2. It is therefore comprehensible that history long 
 preserved this tie, and even surrounded it with the 
 glamor of poetry. Even today, the relation between 
 children and parents is one of the most intimate and 
 sacred ; it is the source not only of ethical dignity, but 
 also of deep moral strength. (See p. 105 (2).) 
 
 3. This institution, however, is not adequate, because 
 the lofty ideals that underlie the whole often fail, and 
 the seeds of anti-culture, even the sources of vice and 
 social anarchy, are sometimes found in the heart of the 
 
§13] FAMILY LAW 109 
 
 family itself. When this is the case it is high time to 
 take the children away from their parents, and to put 
 their training into the hands of the State. 
 
 4. A number of nations, even in earlier times, de- 
 parted from the custom of family training, and intro- 
 duced another kind which may be divided into two 
 separate systems: 
 
 (a) The system of foster-paternity (Pflegvaterschaft) : 
 an altered system of family training, under which another 
 than the real family of the children was made responsible 
 for them. This is justifiable in cases where there is 
 serious immorality in the family, or when exigencies of 
 another nature prevent the family from bringing up the 
 children. But, also, in other circumstances, this system 
 may be advisable ; for instance, if the children of nobles, 
 etc., are to be brought up by ordinary citizens, so that 
 they may learn to be simple and thorough. 
 
 (b) Under another system, the children, especially 
 the boys, were brought up by the State and the temple, 
 so that from their earliest youth their patriotism and 
 civic responsibility might be developed, and that by 
 strict discipline and simple living they might be taught 
 to serve their country and society. 
 
 5. The modem custom of giving children into the 
 care of the State, or placing them in other families, 
 therefore, easily finds a precedent in history; and in this 
 connection, too, the principle applies, that no one system 
 can be regarded as universally beneficial. On the con- 
 trary, sometimes one method, sometimes another will 
 best fulfill the cultural conditions of a nation. 
 
 (c) Family Property. 
 
 1. Whether property in the family is divided, or is 
 held in common, depends largely upon whether the idea 
 of common property is still powerful, or whether efforts 
 toward individualization have reached the point where 
 
no THE LAW OF PERSONS [Ch.VI 
 
 they extend even into the family circle. Even after 
 private ownership was already in existence, family 
 ownership still continued in a wider or narrower sense; 
 and finally, in the narrowest sense, where family prop- 
 erty belonged to the immediate family consisting of the 
 parents and their children. Family property continued 
 to be held in this way as the family property of the 
 parents and as the hereditary estate which consolidated 
 the property of the parents and the children. For a 
 long time, we find traces of this common ownership; 
 especially in the community of goods of man and wife, 
 and also in the arrangement that the property of the 
 children belonged to the parents, even when such prop- 
 erty was secured to the children. Like a release from 
 these fetters came the idea of a separation of property 
 in connection with a unity of property; that is to say, 
 that individual property should remain separate, but 
 that the possessor of one property should have the right 
 of usufruct in the other. In this way, the emoluments 
 of both properties would be in the same hands. It is 
 not rare to find usufruct combined with the power of 
 disposal, which makes the connection still closer. 
 (Compare p. 76.) 
 
 2. Our legal systems stand for the most part on this 
 plane. In some instances, the connection here too has 
 been dissolved. Our matrimonial property laws show 
 an external property connection, the husband having 
 the right of usufruct and disposal in the wife's property, 
 and the right of usufruct in the children's property. 
 Both may lead up to a separation of the property of 
 husband and wife, both of whom, however, are obliged 
 to contribute according to their property to the cost of 
 the household; and it may also be brought about that 
 the child's property becomes free, but that the father 
 may draw upon it in order to pay the expenses of the 
 child's education. 
 
§13] FAMILY LAW 111 
 
 3. Whether this separation really meets the situa- 
 tion, depends largely upon whether individualism has 
 reached such a point that the former state is felt to be 
 an undignified compulsion; and whether, on the whole, 
 the women and children are better off under the one or 
 under the other system. As far as women are con- 
 cerned, the tendency is all in the direction of property 
 separation, but in such manner that a wife can give 
 her husband the free right of disposal of the emoluments 
 without his being obliged to account for them. In 
 respect to the children, a similar arrangement may be 
 made [in Germany] by the Communal Orphan Council. 
 This system allows of great latitude of treatment accord- 
 ing to person, the amount of the property, and the needs 
 of the case, in contrast to the pattern-like rigidity of the 
 law hitherto maintained; and thus the advance of cul- 
 ture here also produces a condition in which the inde- 
 pendence of the person is preserved, on the one side, and, 
 on the other, the intimate psychic and social relations of 
 men find expression. 
 
 (d) Illegitimate Children. 
 
 1. As long as matriarchy rules there will be no differ- 
 ence between legitimate and illegitimate children. And 
 even under the laws of patriarchy the principle was 
 originally upheld that a woman's child belonged to her 
 husband irrespective of by whom it was begotten. Not 
 until later was a distinction made; and the child of 
 whom the woman's husband was not the father was dis- 
 owned. But, if a child was bom before marriage (out 
 of wedlock), among many peoples it was killed (often the 
 birth was prevented by abortion), or the child belonged 
 to the mother's family until the mother married, when 
 it was taken into the new family. Of any special disre- 
 gard of these children bom before marriage there is 
 
112 THE LAW OF PERSONS [Ch.VI 
 
 originally no trace whatever, and a position equal to 
 that of legitimate children was not refused them, until, 
 in times of patriarchy, the idea gained ground that not 
 every child that happened to come into the marriage 
 was to be considered legitimate, but only those begotten 
 by the husband. The consequence was, that the child 
 bom before marriage, like the child that was the result 
 of adultery, remained outside the husband's family, and 
 belonged to the mother ; the rights on the maternal side, 
 at that period, however, were not very profitable, as 
 the mother did not inherit much and was restricted to 
 the barest necessaries. 
 
 2. In later times, the legitimate child occupied 
 another position, when, instead of patriarchy, the com- 
 bined right of the father and mother was established (the 
 cognate system). The right of the mother then became 
 more important, and this considerably improved the 
 position of the illegitimate child ; only the relation to the 
 father and the paternal family was set aside: otherwise 
 the child attained the complete right of the mother, and 
 this at a time when matriarchy was again a ruling power. 
 
 3. This position of the illegitimate child with full 
 rights as far as the mother and her family are concerned 
 is found in our law, as, for instance, in the German Civil 
 Code. Earlier German systems of family law, in con- 
 tradiction to this, assigned to the natural child a subordi- 
 nate position, even as concerned his rights^ on the 
 maternal side and denied him wholly, or in part, a right 
 of inheritance. This treatment cannot be justified. The 
 ties of blood are just as strong in the illegitimate child, 
 the need of provision just as urgent, perhaps even more 
 so, as he is left entirely to the care of the mother, and 
 knows no training but hers. Such harshness is also con- 
 trary to equity, for the blood unity of the child demands 
 such treatment as should be accorded to blood unity. 
 
§13] FAMILY LAW 113 
 
 Full rights on the maternal side of the illegitimate child 
 cannot be rejected. 
 
 4. When, as regards legitimate children, paternal law 
 came to recognize, and procreation in matrimony be- 
 came the foundation of paternity, it followed, naturally, 
 that the same idea was applied to illegitimate children; 
 and there was a tendency to assign to the father of such 
 children certain legal duties and responsibilities such as 
 belonged to the father of legitimate children. The idea 
 was the more natural, because in the legitimate marriage 
 relation the rights of the father and mother were com- 
 bined, and it was felt to be but just that such a combi- 
 nation should exist outside of matrimony as regards 
 the parents of illegitimate children. But this attempt 
 met with comprehensible resistance; in the first place, 
 because there are frequently obstacles in the way of 
 establishing the paternity of an illegitimate child, and 
 also, because no enduring relationship exists between the 
 mother and the father. The fact made itself apparent 
 that the combined position of father and mother is 
 something quite different when the father and mother 
 are united in a matrimonial union than when they stand 
 apart and remain separated. The connection of paternal 
 with maternal rights came to a halt at the illegitimate 
 child. 
 
 5. Up till now, these obstacles have only partly been 
 overcome. Doubt as to paternity may, indeed, cease 
 when the father acknowledges the child as his own. The 
 other difficulty, on the contrary, must remain as long as 
 the training of children continues to be purely a family 
 matter, and is not undertaken by the State. But, if 
 the latter is the case, there is no longer any reason why 
 the father of the illegitimate child should not fulfil the 
 same duties and responsibilities as the father of legiti- 
 mate children. In such a case, the bringing up of the 
 
114 THE LAW OF PERSONS [Ch.VI 
 
 child would be carried out by the State, because of the 
 absence of a family. Such a development should be 
 fostered, because it is unfair to deprive a child of one 
 parent; and, at the same time, it is an offense against the 
 welfare of the nation, and against cultural order if care 
 is not taken to provide the illegitimate child with the 
 training and education necessary to make his energy 
 useful to society, and so to bring him up, that his latent 
 negative impulses are destroyed. The improper treat- 
 ment of illegitimate children, the ostrich-like policy 
 that fails to see what valuable mental power is thus 
 being lost, has long been a source of deep social injury. 
 
 4. Artificial Relationships 
 
 (a) General Remarks. 
 
 1. Among nearly all nations, beside the actual blood 
 relationship, an artificial relationship has been recog- 
 nized involving legal relations equivalent to the ties of 
 blood. A more detailed presentation of the subject 
 belongs to the history of law : it is one of the most inter- 
 esting pages in the evolution of humanity. 
 
 2. We need only emphasize the following points here: 
 
 (a) The artificial relationship has often given the 
 family new vitality and courage, and even saved whole 
 tribes from decline. 
 
 (b) As in all important legal institutions, religion 
 played a large part in establishing the artificial relation- 
 ship. 
 
 (c) Of the many different kinds of artificial relation- 
 ship, foster paternity has already been mentioned (p. 109) . 
 Many kinds have died out, or have attained importance 
 only in a single case in history (e.g., milk relationship in 
 Islam). Two forms have attained universal historical 
 importance, adoption and blood fraternity (Bluts- 
 brUderschaft) ; of which, however, the latter has dis- 
 appeared from modern civilization. 
 
§13 J FAMILY LAW 115 
 
 (b) Adoption. 
 
 1. Adoption is an institution of high morality; for 
 the love between parent and child is of the highest 
 ethical and educative value, a source of pure feelings, 
 the starting point of devoted effort, an incentive to high 
 moral endeavor, and thus in itself produces and furthers 
 culture. It is just in the soil of such feelings that the 
 most important ideas germinate, spring up, and bear 
 the richest fruit. Moreover, the foster child that thus 
 receives a better education and training, usually is more 
 efficient than if it were left in disadvantageous circum- 
 stances where it might come to an evil end. 
 
 2. It is true that adoption would be possible without 
 the law; it is possible for anyone to take a foster child 
 without any legal relation and devote himself to it; 
 but the legal activity of such a relation has a far-reach- 
 ing and very considerable psychic influence. What, 
 otherwise, only occurs occasionally and uncertainly, 
 thus becomes a regular institution; the child that thus 
 acquires rights, has a much better position than if it 
 were dependent on whim. Particularly, it is spared the 
 unhappy fate, after the death of its benefactor, of being 
 turned out and deprived of maintenance, property, and 
 inheritance. 
 
 3. Adoption may be so carried out that the child is 
 taken away from its own family, and becomes a member 
 of the family that adopts it. This is desirable as long 
 as there is strong family cohesion; for a double family 
 membership in such cases is disadvantageous, and 
 places the child in a situation in whicli it cannot thrive. 
 
 It is different where family cohesion is loose so that a 
 number of educational advantages are required outside 
 of the family, in society and in the State, from the fact 
 that family relationship involves its members only in 
 certain directions. 
 
116 THE LAW OF PERSONS [Ch.VI 
 
 When this is the case, the retention of certain rights 
 in the child's own family is not only possible, but desir- 
 able: there is no reason for depriving anyone of more 
 than is necessary to accomplish certain ends. Hence 
 modem law has led to the introduction of a system of 
 incomplete adoption, under which the adopted child 
 retains as many rights as possible in its own family, and 
 receives in addition its adoptive rights. 
 
 4. A further question concerns whether the child 
 enters into a relation only with the father that adopts it, 
 or also with the father's family. Modem legal systems 
 have denied the latter, in consideration of the fact that 
 the child retains rights in its own family. It would, 
 however, be perfectly conceivable, and not without 
 value, if, by a joint family resolution or something of the 
 sort, the adopted child should also be granted rights as 
 regards the other members of the family. The adopted 
 child would thus be received into the whole family 
 connection; as was the case, for instance, in the 
 Aetleidung of the old Norse law. 
 
 5. With the growth of the system of incomplete adop- 
 tion, another principle has also been developed : that the 
 effects of adoption are one-sided, inasmuch as the child 
 is indeed subject to parental authority in the family 
 that adopts him; but, in other respects, he alone 
 acquires rights, while the father by adoption and his 
 family have no further claim on the child. Here, too, 
 it might be asked, whether it would not be desirable to 
 extend this arrangement; for without doubt the connec- 
 tion becomes closer when claims exist on both sides. 
 It is true that this would also have its disadvantages, since 
 adoption might thus become a matter for speculation, 
 so that motives of avarice might find a footing, and 
 corrupt this beneficial institution. This danger, how- 
 ever, might be averted by careful examination into 
 
S13] FAMILY LAW 117 
 
 each case, and possible prohibition on the part of the 
 authorities. 
 
 (c) Blood-Fraternity. 
 
 1. As an artificial relationship, blood-fraternity has 
 played an important part in the life of nations. The 
 original idea was that the "blood-brothers" were closer 
 to each other than real brothers, and the institution has 
 been a source of the finest self-sacrifice, of ennoblement, 
 of mutual devotion, of the purest unselfishness. 
 
 2. Unfortunately, the legal institution has died out; 
 it was much used, and also much abused ; it became the 
 spring that set kin-revenge in motion, a means of further- 
 ing rebellious acts, and the connecting element in wild 
 and destructive societies. 
 
 Nevertheless, its disappearance is greatly to be re- 
 gretted, for such an incentive to unselfishness, such an 
 aid in all the conditions of life, must always be recog- 
 nized as promoting culture; just as any ideal in itself 
 strengthens the cultural power of a people, in so far as 
 it is not too closely mixed with destructive elements. 
 
 3. Here, too, we must repeat, that such a psychic 
 relation can exist without legal protection or legal form. 
 But what was said of adoption also applies in this case. 
 It is of far-reaching importance, when the law takes hold 
 of, and shapes such institutions; they thereby become 
 normal, and lose their exceptional character, and their 
 significance is greatly enhanced, if what one man expects 
 from another is also required by law. The rigid legal 
 manner of creating and dissolving the relation gives it 
 support and strength, and especially a series of impor- 
 tant legal consequences may thus follow ; as, for instance, 
 if a blood -brother is privileged to refuse his testimony, 
 or if the shielding of a blood-brother is as unpunishable 
 as that of a real relation, or if the duty of mutual 
 
118 THE LAW OF PERSONS [Ch.VI 
 
 support, and perhaps also a right of inheritance exist. In 
 all such cases, the law may be appealed to, and the uncer- 
 tainty and vagueness of relations that exist merely in 
 fact are removed by legal regulation. 
 
 4. Will this institution perhaps be revived? Unless 
 there is something in life that supports them, such cus- 
 toms cannot be created; the ardor and enthusiasm that 
 lead to such an ideal cannot be artificially produced; 
 they must proceed from within the nation. Sexual ele- 
 ments rarely entered into the relation (as among the 
 Greeks), nor would they add to its nobility; for sexual 
 commerce between members of the same sex corrupts 
 rather than develops the mind. 
 
 5. Substitutive Family Law 
 
 1. Family training should be fostered as far as pos- 
 sible, even if there are no parents living; other members 
 of the family then take the place of the parents. No 
 difference between parental authority and guardianship 
 originally existed. It is already a step taken from family 
 training towards State training, if, in such cases, a guar- 
 dian is appointed by the State, who, as an agent of the 
 State, sees to it that the child is cared for, and manages 
 his property. Guardianship still retains much that 
 belonged to the former family regime, it is true, for 
 which reason I speak of substitutive family law. 
 
 2. The supervision of the guardian alters very much 
 in the different stages of social organization. Where it 
 is the family that undertakes the chief cultural duties, 
 it is, of course, a council of the family that supervises, 
 and determines the leading principles for the care of the 
 child. But, when the power of the family is dissipated, 
 the State or community must step in, and according to 
 where the greater expert knowledge and the greater 
 readiness to serve are to be expected, one or the other 
 
§13] FAMILY LAW 119 
 
 system will be preferred; accordingly, it is sometimes 
 the courts, sometimes the municipal authorities, etc., 
 that are entrusted with these duties. Here, too, of course, 
 everything is in a state of development. Sometimes, 
 the co-operation of the family is desirable; wherefore, 
 for instance, according to German law, the guardian- 
 ship court must confer with the family in important 
 cases, and under some circumstances a family council 
 may be appointed, at the head of which, however, stands 
 the guardianship judge. Although in Latin countries 
 the family council plays a more important part, it is 
 only a survival, and is no longer felt to be the adequate 
 form even there. 
 
120 THE LAW OF PROPERTY [Ch.VII 
 
 CHAPTER VII 
 
 THE LAW OF PROPERTY 
 
 SECTION XIV 
 I. THE LAW OF THINGS 
 
 1. General Remarks 
 
 1. Ownership in the legal philosophical sense is an 
 individualistic relation of a legal subject to a material 
 object, and presupposes that the material world is 
 apportioned, and does not serve the common enjoyment 
 of all. 
 
 2. Whether such a distribution is justified or not, 
 like all questions of a legal philosophical nature, cannot 
 be definitely settled in a universally applicable manner. 
 It depends upon the stage that the development of cul- 
 ture has reached, and also on whether the latter is 
 collective or individualistic in character. The more it par- 
 ticularizes, the more vigorous will be the idea of prop- 
 erty, and the deeper will its roots strike into the law 
 and into the hearts of all. It is by no means necessary 
 that all natural objects should be distributed in the 
 same manner; it is possible that an abundance of things 
 may still be held in common, while, as regards the rest, 
 particularization has already gained ground. 
 
 Movable things, for instance, are far more liable to 
 particularization than are immovables; for which reason, 
 it is comprehensible that nations have long recognized 
 movable property, while for centuries the ownership 
 of land was still collective Some movable things 
 are closely connected with each individual's private 
 
514] THE LAW OF THINGS 121 
 
 mode qi life and although it is still possible that they 
 should belong to the collectivity and only be loaned to 
 the individual; yet, the carrying out of this idea 
 presupposes such a high degree of collective spirit, 
 that without it no happiness and no welfare would be 
 possible. 
 
 Land, on the contrary, as long as it is merely 
 wandered over in the search for food, may well remain 
 common property; especially, if, as in primitive times, 
 the population is, and continues to be scanty, and the 
 danger of conflicts is slight. But, even when agricul- 
 ture is practised, and the land is under cultivation, it is 
 possible, though collective spirit may not he strong, to 
 retain community ownership of land and field, with 
 common cultivation and common pasturages. And, even 
 when cultivation is more individualistic in character, a 
 strong element of collective activity will still remain; 
 particularly, when the equipment of the individual is 
 not adequate, and he requires the help of others in cul- 
 tivating the soil, and overcoming the obstacles of nature. 
 Even when the cultivated land has already been dis- 
 tributed, large tracts will still remain for collective 
 use. Thus, it will be with wood and pasture, private 
 ownership of these long remaining disadvantageous, 
 because individual management only gradually develops 
 to the point where it can include also this kind of 
 territory. 
 
 3. Intellectual productions both esthetic and techni- 
 cal also may be subject to private ownership. Esthetic 
 goods again may be writings, music, or paintings; techni- 
 cal productions are inventions, or useful models which 
 accomplish certain ends, and thus are able to fulfill cer- 
 tain human purposes. But all these goods are not 
 entirely individualistic; there is a certain universal 
 human element in them, inasmuch as no one can create 
 
122 THE LAW OF PROPERTY [Ch.VII 
 
 anything without the aid of the mental achievements 
 of earher periods. But this does not prevent his having 
 for his own whatever he produces independently with 
 this raw material. 
 
 The term intellectual property has been used in this 
 connection, but it is more accurate to speak of rights in 
 immaterial things. It is peculiar to them all that they 
 are not permanent but temporary; and they are so, not 
 by chance, or by positive legal provision, but of neces- 
 sity, as such mental achievements become in time uni- 
 versal cultural possessions, and the formative material 
 of human activity. 
 
 This subject is fully treated in the "Lehrbuch des 
 biirgerlichen Rechts" and need not be considered here, 
 since an exposition of civil law is not possible without 
 taking into consideration its legal philosophical elements. 
 For this reason, my writings on the subject contain the 
 legal philosophical explanations that are necessary to 
 an understanding of it. 
 
 4. Not all goods are amenable to detachment and 
 special title in the same way. There are some that 
 cannot be detached at all, and others that can be so only 
 for a time. There are things that are indisputably 
 intended to be universal, because the conditions of 
 human life rest upon them ; as, for instance, the air and 
 the sea: these cannot be isolated, and therefore cannot 
 be made the objects of private rights. Other goods may, 
 indeed, be detached for a time, but their tendency is to 
 become universal, inasmuch as the purpose for which 
 they are designed would make the enjoyment of them 
 general. These include, as we have said, immaterial 
 things, inventions, etc.; it is possible that, for a time, 
 they may be the object of a special right, but, if they 
 prove to be enduring, it is absolutely necessary that 
 society should have access to them, if for no other 
 
§ 14 ] THE LAW OF THINGS 123 
 
 reason, because they help to form the foundations of 
 intellectual or technical culture, and new conditions of 
 life are based upon them. But, if an invention is not 
 successful, and proves to be valueless, its reversion is the 
 more necessary, for unproductive rights are a useless 
 hindrance, and a source of human detriment. 
 
 One means of preventing the isolation and separation 
 from commerce of certain goods was the taboo. 
 
 Taboo, in this narrower sense, the taboo of things, 
 arose thus: by command of the priests, or the chief, a 
 thing was assigned to a higher circle of life. Thus, a 
 kind of consecration was established, the object being 
 dedicated to the cult, or the royal service. In this way, 
 it was possible to reserve a number of things for higher 
 State or religious use, which would have performed much 
 less service if used for the ordinary needs of life. In this 
 respect, too, the taboo was extremely promotive of human 
 culture. (Compare p. 67.) 
 
 5. Running water is common property; yet, it may 
 become subject to private right, though not in the 
 manner formerly thought; that is to say, that the wave 
 of running water as it progresses, belongs first to A, 
 then to B, then to C. The idea of such constantly 
 changing ownership is just as absurd as if we should 
 assume that game belongs to the man on whose property 
 it happens to be at the moment. Property that would 
 thus change hands, as the wind changes, would be too 
 much at variance with the idea of ownership altogether. 
 On the other hand, it must be acknowledged that private 
 rights in water and in its forces may exist, and especially 
 is this true of the descent of water and the power thus 
 produced. Such a right can only be conceived of as an 
 immaterial right, similar to the right in electricity, and 
 belongs either to the owner of the river bed or to another, 
 and entitles the holder to the exclusive use of the tem- 
 porarily and locally established power. 
 
124 THE LAW OF PROPERTY [Ch.VII 
 
 6. Individualization requires an apportionment of 
 personal goods, so that each individual may live his life, 
 and develop his powers. For humanity cannot attain 
 its aims, unless the springs are uncovered that lie dor- 
 mant in every single being, and that are inactive so long 
 as the individual is held fast in collecti\-ity. Hence, 
 much must take place now tiiat formerly was not known. 
 Training and education assume an entirely different 
 aspect, the relation between the sexes is elevating and 
 beneficial in its influence, friendship becomes brother- 
 hood, and an abundance of new associations serve to 
 guide individual efforts into common ways, in order thus 
 to promote multifarious intellectual interests. Parental 
 rights, household rights, family and guardianship rights, 
 marriage rights, and association rights will develop, 
 and thus contribute to the growth of new and mighty 
 cultural possessions. And just as the protection of 
 ownership will strengthen, to the utmost, the power of 
 production as regards material goods, so, too, the pro- 
 tection of mental creations will have a powerful effect; 
 for the individual must rule as an individual, he must 
 enjoy the fruit of his labor; in this, as in other respects, 
 sound individualism must govern mankind, and act as 
 an incentive to new achievements. 
 
 7. In this manner, tremendous forms of activity will 
 arise, and with them the constant new production of 
 goods on the one hand, and, on the other, the constant 
 new distribution that makes it possible for goods to be 
 held sometimes individually, and again collectively, so 
 that they become productive and useful. For it is one 
 of the qualities of economic values, that they are some- 
 times more effective when isolated, sometimes when 
 held in a wisely planned combination of ownership, than 
 when they are subject to the indiscriminate participa- 
 tion of all. The chief aim is now to develop to the 
 
§ 14 ] THE LAW OF THINGS 125 
 
 utmost individual property, now to achieve those com- 
 binations that are fitted to produce much that is new 
 and significant. Culture with individualization, and 
 with a well planned combination ownership of goods, is 
 the permanent source of new vital advantages and new 
 productions of life. 
 
 8. The growth of individual ownership, then, has 
 been an important means of promoting human culture, 
 just as has the individualization of men, for it has vastly 
 increased and accelerated human powers. By means of 
 greater varie'ty, a wealth of relations has been created, 
 and at the same time man's command of the goods of the 
 earth has been tremendously strengthened. For now 
 much more is thought out, much more is planned and 
 tried, than formerly; and, above all, that sound egoism 
 appears which controls civilized humanity and will not 
 again forsake it. For what a man owns for himself and 
 to his own advantage, he possesses with a double affec- 
 tion, and he will make far greater efforts to obtain it, 
 than if others besides himself, or the whole community, 
 were to profit. Here too, of course, the cunning of the 
 cosmic system creates fancies and dreams. It promises 
 man all kinds of delights, when he shall have obtained 
 certain goods, and after he has obtained them, dis- 
 illusionment and disappointment follow. But this 
 imaginative life has always been exceedingly promotive 
 of culture. 
 
 9. The individual ownership of land often requires 
 improvement; for great as are the advantages of a 
 secure apportionment of property, it thereby becoming 
 possible for the individual owner to make use of the 
 thing in every way, and to develop its economic powers, 
 yet the geographical situation and economic position 
 of lands frequently demand that other property be 
 involved ; because otherwise land, sometimes, could not 
 
126 THE LAW OF PROPERTY [Ch. VII 
 
 be developed to the utmost, and a part, at least, of 
 its uses might be cut off. Think of a piece of land, on 
 which there is no water, and that can only obtain it by 
 conducting it through other property, or that can be 
 connected with electric current only in the same way. 
 In such and similar cases, a very slight restriction or 
 encumbrance on the one side often means a tremendous 
 advantage on the other. In order that such lands can 
 be developed, praedial servitudes have been introduced; 
 that is, privileges, which for the benefit of one property 
 encumber another, and which entitle the hftlder to erect 
 certain kinds of works on this other property, to use it in 
 certain ways, or to demand that the other property 
 shall not be altered to interfere with the use of the first 
 property. These praedial servitudes are attached to 
 land, and, accordingly, we speak of prcedium dominans 
 and pradium serviens. Legally, of course, the matter 
 is so arranged, that the holder of the prcediuin domi- 
 nans is also entitled to the servitude. But this must 
 not be understood as meaning that the right attaches to 
 the owner of the prcedium dominans; on the con- 
 trary, whoever owns the right in the dominant land, 
 for the exercise of which the other piece of land must be 
 utilized, can make use of the servitude. Hence, this 
 servitude cannot be said to belong only to the owner, 
 but to all who have rights in the dominant land accord- 
 ing to the nature of their rights; and that is what is 
 meant, when we say that the land itself is the entitled 
 subject. 
 
 The further explanation of this point belongs to the 
 civil law, and is contained in the "Lehrbuch des biirger- 
 lichen Rechts"; I have also given it in part elsewhere. 
 It is essential that the legal system should encourage 
 landed property in the greatest possible way; yet, on 
 the other hand, it is equally necessary that the prmdium 
 
J 14] THE LAW OF THINGS 127 
 
 semens should be encumbered as little as possible so 
 that its own use may not be interfered with. Especially 
 should the desire to transfer the servitude to other land 
 be met, in as far as this can be done, without detracting 
 from the advantages of the dominant land; for here, 
 too, that law is the best that most effectively balances 
 the most opposing interests. 
 
 2. Acquisition and Loss of Ownership 
 (a) Original Acquisition. 
 
 1. The manner in which the legal system admits the 
 individual to ownership, relates to its historical develop- 
 ment, and is nowhere based entirely on reasonable 
 grounds. It is a factor in the origin of States, and 
 cannot be understood by itself alone, but only as a part 
 of the great process of the national creation of culture. 
 With conquering nations, it is the power of the con- 
 querors that is determinative ; and the principle of inter- 
 national law, that possession once acquired contains a 
 certain element of reason, and cannot be altered at will, 
 also applies here. But when material goods have to an 
 important degree entered into human commerce, our 
 concern is no longer with the original but with the 
 derivative acquisition. 
 
 2. Nevertheless, even now, when reasonable regula- 
 tion is possible and conditions of peace are established, 
 there are still cases of original acquisition; and in this 
 connection, it must be said, that it is especially in accord- 
 ance with the law that a man should become the owner 
 of what he gains by his own efforts, by connecting his 
 individuality with the object. This is the acquisition of 
 ownership by labor, a doctrine that has been defended by 
 Locke, among others, and which cannot be exaggerated 
 except in so far as this mode of acquisition cannot be 
 considered exclusive. 
 
128 THE LAW OF PROPERTY [Ch.VII 
 
 3. As soon as mankind is individualized, the work of 
 each man becomes indi\4dualized ; that is, he wants and 
 may have his work to himself, and need not suffer it to 
 be returned to the collectivity. In the acquisition of 
 ownership, the principle follows of itself, that if a man 
 has put his work into a natural product, by transferring 
 it from the world of nature to the world of universal 
 human control, or by otherwise increasing its useful- 
 ness, and intensifying its character as wealth, he can 
 demand that his relation to it should be nearer than that 
 of others, because he has put a part of his personality 
 into it, and thus given it something of himself. 
 
 From this there follows the justification, of acquisition 
 of ownership by taking possession, and by improvement, 
 the principle being upheld that it is not the amount of 
 work that is of importance, but the usefulness resulting 
 from the work, that is, that the thing is made sus- 
 ceptible of human interests, with greater or lesser 
 advantages. 
 
 For the taking possession also must be regarded as a 
 kind of work ; work must be understood to mean every- 
 thing that puts something, either in its original or in an 
 improved form, within the reach of human enjoyment 
 and control. Above all, what is called improvement or 
 specification must here be taken into consideration. 
 Here work even appears as the binding and essentially 
 determinative element of the matter, as opposed to 
 ownership of the material, and may even overcome the 
 latter unless the material is of such importance that it is 
 able to withstand the attack. The measure of impor- 
 tance, however, is determined by the relative values in 
 the thing that consists of materials and work. 
 
 4. Another basis of acquisition of ownership is 
 usucaption. In this process, time gives its sanction 
 to the relation of the individual to the thing; time and 
 
§14] THE LAW OF THINGS 129 
 
 everything that transpires within it. For in time, 
 cultural processes go on, in which material things play 
 an auxiliary part, so that they become a constituent 
 part of cultural achievement. To remove things from 
 this connection would be contrary to culture; usucap- 
 tion must prevent that. 
 
 (b) Barter and its Consequences. 
 
 1. In order that property may fulfill its cultural 
 purposes, it must be exchangeable; for only thus does 
 it become possible for wealth to reach the place where 
 it will be most effective. This has still further advan- 
 tages, for it infinitely increases productive power. A 
 man does not produce only what he can use himself, 
 but considerably more, so that he can exchange with 
 others to his own advantage. It is only in this way 
 that work systematically designed for exchange, and 
 the division of labor that it involves, can arise; and 
 with it are connected the recognized advantages of the 
 division of labor. The workman attains greater skill; 
 he adjusts his life to his work; makes the necessary 
 arrangements to carry it on, on a large scale; and will 
 therefore produce more and better work than under 
 other conditions. And, as this applies to others as 
 well, three, four, or six times as much will be produced 
 as if each man were obliged to obtain for himself all the 
 necessary natural products . This division of labor, which 
 was recognized even by Plato ("De Republ.," ii) and 
 Aristotle in his "Politics," as a means of promoting 
 culture, and which was excessively valued by Adam 
 Smith in the eighteenth century, presupposes, of course, 
 that a man can exchange those goods that he does not 
 need for others for his^ own personal use. This possi- 
 bility of exchange is also necessary; because if a 
 man's production is one-sided, his other needs are not 
 
130 THE LAW OF PROPERTY [Ch.VII 
 
 provided for, and he requires the addition of things that 
 are produced by others. For this reason, then, wealth 
 becomes transferable. 
 
 2. The transfer of a right is distinguished from its 
 re-founding, in that the special peculiarity of the right 
 that has been formed through its original founding and 
 previous destinies does not disappear, but continues in 
 the possession of a later entitled subject. Hence, we 
 cannot say that the right of the other is simply a new 
 right ; as a new right it is at the same time a continua- 
 tion of the old right with its peculiar qualities. 
 
 3. These qualities may be entirely maintained or 
 only a few may be taken over, and the right held by the 
 successor may be more or less stripped of them. It is 
 therefore possible that the successor may obtain more 
 rights than his predecessor had; for the legal system 
 often has reason to depart from the maintenance of the 
 original situation, and to assign to the successor's act 
 of acquisition a significance that exceeds it. 
 
 One main reason for this is public confidence in con- 
 nection with the certainties that some transfers offer, 
 so that the transferee expects, and according to the 
 ideas of commerce, is justified in expecting, that he is 
 procuring a complete right unrestricted by its former 
 particularities. 
 
 It is a complete mistake to assume that the Roman 
 principle, according to which no one can transfer more 
 rights than he himself has, is a universally applicable 
 one, rooted in the nature of the matter. That can only 
 be asserted by a superficial legal view. On the contary, it 
 is very easily possible that the successor may acquire more 
 rights than his predecessor had ; and just in this lies that 
 peculiarity on which the security of commerce is based. 
 
 This principle of acquisition also leads to loss of own- 
 ership, and this subject is dealt with under the extinc- 
 tion of rights, p. 133. 
 
§14] THE LAW OF THINGS 131 
 
 4. The transferability of ownership is the cause of 
 the differences of wealth, and is largely the source of 
 the tremendous inequalities and abuses that they 
 involve, for: 
 
 (a) One man will be fortunate, the other unfortunate, 
 in handling his wealth. 
 
 (&) Some men in case of need, or for lack of judg- 
 ment, will dispose of their wealth for an inadequate or 
 temporary equivalent. 
 
 Added to this, is the right of succession, which will 
 be discussed later, and which is also a great source of 
 inequality, if only because in one family the inheritance 
 falls to two, in others to six, eight or ten heirs. 
 
 This inequality cannot be removed, it can only be 
 lessened, and this is attempted in several ways: 
 
 (o) The condition of the laborer is improved, thus 
 making it possible for him, in spite of the lack of capital, 
 to work his way up and out. 
 
 (6) The wealth of foundations or other permanent 
 funds are used to aid persons who lack neither the ability 
 nor the willingness to work, but merely the principal 
 means. 
 
 (c) In times of pressure the needy are cared for, 
 thus preventing their becoming entirely impoverished. 
 
 (d) Above all, however, by social cohesion the weak 
 are enabled to help themselves, the small capitalists to 
 aid one another, and thus the progress of all is promoted. 
 
 5. All these endeavors depend on the principle of 
 development mentioned above, according to which 
 individualization always makes again for collectivity, 
 and inequality for equality. But, of course, no civilized 
 State will give up the achievements that have been 
 accomplished by centuries of effort, unless, indeed, history 
 should again commit one of its illogical sins, and that the 
 mind of man should wander again in error, and not return 
 
132 THE LAW OF PROPERTY [Ch.VII 
 
 to the consciousness of its high cultural duties until after 
 centuries had elapsed. Private property, then, must 
 remain, but by co-operation it is again socialized; and 
 just as work gave it dominant control, so too it is 
 united work that confronts it, as a new and powerful 
 factor, and new forms arise under the tremendous 
 activity of generations. These alliances and unions and 
 their significance have already been spoken of above. 
 (p. 124 (7).) 
 
 6. Sometimes the operation of mines is combined 
 with land-ownership ; sometimes mines are worked inde- 
 pendently, and are either made subject to State manage- 
 ment, or are operated simply under mining rights. In 
 this respect, too, no definite, exclusively just system can 
 be established. Only the following must be noted: 
 
 Separation of mining from land ownership has great 
 advantages because, of course, the veins do not coin- 
 cide with the land boundaries, and because the technic 
 and capitalization of agriculture are so absolutely differ- 
 ent from those of mining that a combination of the two 
 must be more or less detrimental. Whether, then, free- 
 dom of mining or a government monopoly is introduced 
 will depend largely on whether, in the individual case, 
 freedom or constraint is the more practical. Mining 
 freedom may at times contribute greatly to the dis- 
 covery and development of mineral resources; on the 
 other hand, by way of combinations, it may lead to all 
 the evils of monopolization and trust control. The price 
 of necessary minerals like coal may be artificially raised, 
 and especially foreign enterprise may obtain control of 
 domestic resources to an undesirable extent. When 
 indications of such a state of affairs appear, it is well for 
 the State to lay its hand on the treasures of the country, 
 and to regulate the acquisition of mining rights by grant- 
 ing concessions. 
 
§14] THE LAW OF THINGS 133 
 
 (c) Extinction. 
 
 1. Whatever exists is worthy to perish, and this in- 
 cludes also ownership. Cases may occur in which owner- 
 ship must at once disappear. The State, indeed, should 
 not interfere arbitrarily and should give compensation 
 whenever it expropriates anything, but this is a principle 
 that does not belong to the doctrine of ownership but to 
 the just distribution of burdens. If the State needs the 
 property of an individual, it must not burden this person 
 with more than others have to carry, but must distribute 
 the charges ; that is to say, it must assign an equivalent to 
 the person from whom the expropriation is made so that 
 he need not contribute more to the furtherance of the 
 public interest than do others. (Compare p. 210.) 
 
 2. Far more important, however, is the cessation of 
 ownership brought about by its collision with the 
 demands of commerce. There are many cases when 
 ownership, must bow to the interests of third persons 
 who act in good faith, and where especially institutions 
 connected with commerce exist which because of their 
 public character require security in the acquisition of 
 ownership and where the transferee gets as much right 
 as he can expect under these circumstances. (Com- 
 pare p. 130(2).) 
 
 3. This collision, between ownership on the one 
 side, and the needs of commerce on the other, has given 
 rise to all those principles, that make the transferee 
 who acquires in good faith the owner without regard 
 to the ownership of the transferror, so that the actual 
 owner suffers the loss.' 
 
 4. This acquisition of a right is connected with the 
 dual system of legal rights and with the principles of 
 transferability, both of which have been dealt with above. 
 (Compare- p. 87 and p. 130.) 
 
 ^Binding's effusion on the injustice of acquiring property from one 
 who is not the owner has been characterized by Neubecker, "Archiv f. 
 Strafrecht," 55, p. 146. 
 
134 THE LAW OF PROPERTY [CH.VII 
 
 SECTION XV 
 II. THE LAW OF OBLIGATIONS 
 
 FIRST DIVISION 
 
 THE LAW OF OBLIGATIONS IN GENERAL 
 
 1 . Foundations of the Law of Obligations 
 
 1. The legal bond that is formed, when an obligor 
 takes upon himself an obligation, and thus places himself 
 under the compulsion of the law, is necessary to com- 
 merce, hence, also, to cultural order. No culture can 
 exist without such a law of obligations, and especially 
 no advanced culture in which wealth is produced, not 
 mainly by those who enjoy it, but by other persons. 
 It is the province of the law of obligations, in these cir- 
 cumstances, to provide that wealth shall come either 
 directly or indirectly into the possession of those who 
 can employ it. (Compare p. 129.) 
 
 2. Obligatory relations, therefore, are based on a 
 system of individual economic spheres, and are intended 
 to place these in a permanent relation to one another, so 
 that they are able to accomplish more than if they were 
 separated and isolated: in other words, the separation 
 that has been brought about as a consequence of private 
 management is made to cease when a higher plane is 
 reached. In particular, obligatory relations make pos- 
 sible an exchange of economic objects, and protect 
 society from the ossification that would take place if the 
 distribution of wealth were eternal and unalterable. 
 Hence, without affecting individual activity too greatly, 
 they are an excellent means of procuring for it the 
 advantages of collective effort, of bringing about the 
 
§15] THE LAW OF OBLIGATIONS 135 
 
 distribution of wealth to the persons who require it more 
 than others, notwithstanding the manner in which it 
 may be distributed already; so that instead of a perma- 
 nent distribution, a constant re-distribution and re- 
 allotment takes place, and everything is kept in constant 
 motion. (Compare p. 124.) 
 
 3. In addition, obligatory relations bring the future 
 to the aid of the present. Just as they ignore distance, 
 and make commodities from the farthest points subject 
 to exchange, so, too, they bridge over time, and press 
 what the future has to bring into the service of the 
 present. This is a tremendous aid to the development 
 of intellectual powers; for many people can achieve 
 more than they ordinarily would if they can obtain 
 existing wealth in exchange for what they will have to 
 offer in the future. It is just the most energetic and 
 ambitious natures that can procure, in this way, the 
 means for the production of new goods. 
 
 Thus, it is the function of the law of obligations to 
 smooth away inequalities and chance, and thereby to 
 make it possible for the values that are inherent in 
 humanity to become effective in their proper propor- 
 tions. In this way, it liberates development, and re- 
 lieves it from the hazards of time. A great variety of 
 values lie in the future, and for the time being, do not 
 exist for the present: time is the stepmother of humanity ; 
 it suppresses values that deserve full recognition and 
 application. And, in this contingency, it is the province 
 of the law of obligations to draw the future into the 
 present. By this means, economic life, in fact the whole 
 world of human values, is tremendously enriched, and 
 the future already devotes its gifts to the present. 
 
 4. The nations that thus "discount" the future are 
 optimistic nations, full of the joy of production. But 
 not all nations are so; some refuse to reach into the 
 
136 THE LAW OF PROPERTY [Ch.VII 
 
 future: to them it is inviolably sacred, or it is nothing, 
 and lies outside the range of commerce. This concep- 
 tion of the future as a blank page lying beyond our power 
 is thoroughly oriental (p. 28), and it explains the oriental 
 prohibition of transactions involving future values; for, 
 in such transactions, one gives a present value for a 
 future value which presently is not recognized by the 
 law. Chance is an immense factor in the future, and 
 the Orient does not concern itself with chance. 
 
 This also explains the prohibition of usury, that is to 
 say, of taking interest; even though the money produces 
 profit, yet this is only the result of future acquisitive 
 activity. This future result cannot be considered at 
 the time; and as it does not come into consideration, no 
 equivalent value can be given for it, otherwise interest 
 would be given in payment for nothing. From this, too, 
 we understand why, in the Orient, the prohibition of 
 taking interest, and the prohibition of transactions 
 involving future things, are related and appear as one 
 institution. 
 
 This subject will be dealt with again later, (p. 17.) 
 5. Obligatory relations, moreover, draw the powers 
 of individuals into commerce, and in this way substi- 
 tute the possibility of free labor for slavery. In ancient 
 times, men either worked for themselves or as slaves; 
 work for others, under different circumstances, was 
 exceptional, and assumed more the form of a kind act. 
 (p. 95.) It was not until the idea arose that an individual 
 might take upon himself the obligation to perform work 
 for another without becoming subject to the other's 
 arbitrary domestic power that a free right to work was 
 created. At the same time, the bonds of slavery were 
 loosed, and an infinite development of personal power 
 was made possible. This idea excites the powerful 
 impulse to action of those wholly unfavored by the gifts 
 
§15] THE LAW OF OBLIGATIONS 137 
 
 of fortune, or in whom the keen ambition to acquire 
 further wealth is inherent. (Compare p. 177.) 
 
 6. From the beginning, the law of obligations has had 
 also an ethical character: everywhere ethics stood by 
 its cradle. But at the same time, it has also been the 
 means of raising the ethical standard of humanity. The 
 ethical element that enters into consideration here is 
 the reliability or dependableness of the person. Here, 
 too, the object is to exclude chance and replace it with 
 law and rule. If a man has once given his word it must 
 not depend on chance whether he fulfills it or not; 
 others must be able to build on it, and to arrange their 
 affairs accordingly. A man who is true to his word acts 
 more morally than one who is not, first because he obeys 
 a rule, and not his own desire, and then because, in the 
 interest of another, he struggles against his humor and 
 egoism which might lead him to break his word. Adher- 
 ence to a promise thus reaches deep into moral life. 
 It follows the command of truth which here is moved 
 from the present into the future. The person who 
 promises must make his word come true; for when he 
 promises, he gives the assurance that in the future 
 some definite thing will occur, and he must see to it 
 that it does occur. 
 
 Like everything of an ethical nature, this too was 
 originally bound up with religion, and hence has a 
 strong cultural significance ; for religion is always promo- 
 tive of inner culture, and gives utterance to the deeper 
 sides of humanity. But, even separated from religion, 
 ethics has been of importance for the development of 
 mankind. 
 
 7. The idea that a man must remain true to his word 
 is one of the main le\sers of the law of obligations; for 
 obligations are based to a large extent on promises, on 
 contracts. The thought of an obligatory tie is asso- 
 
138 THE LAW OF PROPERTY [Ch.vII 
 
 dated with the sacredness of a promise, because the ful- 
 fillment of the obligation is nothing but keeping the 
 given word: the two concur. 
 
 And, as in the organic world two things always act 
 upon each other, so too it is in this case. The law of 
 obligations originates in the demand of faithfulness, but 
 it also itself demands that a promise be kept by aiming 
 constantly at the fulfillment of the given word. In this 
 lies the extraordinary ethical value of the law of obliga- 
 tions; it cultivates in man the spirit of faithfulness to 
 his word and his agreements, and works against arbi- 
 trary desire, and still more, immoral trickery. 
 
 The explanation of how the idea of faithfulness to a 
 promise fructified the law of obligations must be given 
 in the history of the law. And there, too, it must be 
 shown how this ethical idea appeared in religious attire, 
 and long retained this religious character (p. 137) ; the 
 promise was made in the presence of the gods, streng- 
 thened by sacrifices at their altars, and an oath was 
 taken inviting their curse if the word should be broken. 
 Sometimes, men even took certain definite disadvantages 
 upon themselves in case they should not keep their 
 word, and pledged their bodies, their lives, their liberty, 
 their honor, their allegiance to their country, and in 
 fact all values, as has been described elsewhere.^ 
 
 8. The general aims of legal culture and the parti- 
 cular ethical aims of the law of obligations are not always 
 in accord with each other. The future may be dis- 
 counted for the present, and present and future values 
 balanced against each other, only in as far as these 
 values are not opposed by moral and economic ob- 
 stacles. The reasons that can be advanced against 
 immoral and uneconomic action apply, of course, more 
 strongly to the use of legal means for such a purpose. On 
 
 • "Shakespeare vor dem Forum der Jurisprudenz," (1883). 
 
§15] THE LAW OF OBLIGATIONS 139 
 
 the other hand, the principle of faithfulness to an agree- 
 ment will admit of no restrictions; it requires the ful- 
 fillment of the promise to the last jot; it demands that 
 the man who promises shall not be able under any pre- 
 text to free himself from carrying out his word. Thus 
 the sacredness of the promise leads to a certain pain- 
 ful rigidity; it results that the word must be kept, 
 regardless of all else, and of any circumstances of the 
 case that may oppose it. Thus, men come to feel that 
 a promise must be kept, even when it is at variance 
 with general morality, or is entirely uneconomic in its 
 result. This also gives rise to the principle, that gambling 
 debts are debts of honor, and, even though not recog- 
 nized by the law, must, by reason of the given word, 
 be all the more punctiliously discharged. 
 
 These two principles long stood in contradiction to 
 each other, and, indeed, even today, this contradiction 
 has not been fully reconciled. It is found especially in 
 earlier discussions of the vow, and of the question, to 
 what extent a man might free himself from his vow, if, 
 being carried out, it involved immoral action, or pro- 
 duced a detrimental result not justified by the circum- 
 stances. In such a case, the nullification of the vow was 
 more or less used as an expedient.' 
 
 The solution can only be in this: that the principle 
 of faithfulness to an agreement must be made sub- 
 servient to universal cultural law, and the principle 
 brought into prominence, that where immorality and 
 corruption lie, even the given word is not entitled to 
 abuse the sacredness of the law. It must be clearly 
 recognized, that the fulfillment of a promise that is con- 
 trary to morality in its nature, is merely a second im- 
 moral act, and therefore a wrong. This is the only way 
 
 8C/. Kohler and Liesegang, "Das romische Recht am Niederrhein," 
 II, p. 59, seq_. 
 
140 THE LAW OF PROPERTY [Ch.VII 
 
 in which we free ourselves from formalism, and sink 
 the promise in the depths of moral cultural law. 
 
 9. This is especially true of that kind of immorality 
 that leads to the restriction of personal liberty. In 
 this respect the following applies: 
 
 The right to make contracts emanates from the free- 
 dom of human activity, and this freedom is the nerve 
 of the development of the individual and the culture 
 that he produces. But as has already been said, this 
 must be within limits. The objects of a contract or 
 agreement may conflict with the interests of morality 
 or economics; the liberty to make contracts might be 
 misused to enslave the individual and fetter his future. 
 How far, in this connection, freedom extends, varies 
 in the different stages of culture; where slavery is 
 accepted, a man can in various ways make a slave of him- 
 self; where slavery is rejected, all efforts are forbidden 
 that bring about slave-like conditions. 
 
 Two facts especially come under consideration here : 
 
 (a) The effect of the liberty of contract is beneficial 
 only if the contracting parties are free to decide; and, 
 especially, if a certain possibility of choice exists, so 
 that the person is not in a necessitous situation. Tran- 
 sactions concluded in a necessitous situation are also 
 indeed valid, but disproportionate advantage must 
 not be taken of the necessitous situation: that would 
 be unconscionable and is forbidden. 
 
 {b) The liberty of contract may also be corrupt in 
 its effect, if a whole class of persons is driven by the 
 exigencies of life to make contracts of a certain kind, 
 and the freedom to make contracts would lead to the 
 oppression of these persons: the economically weak 
 would succumb. Here, it is for the law especially to 
 determine that such contracts must not contain certain 
 conditions which oppress the economically weak. (p. 177.) 
 
§15] THE LAW OF OBLIGATIONS 141 
 
 (c) The right of contract may also be abused in the 
 formation of associations that control commerce, and 
 turn it out of its natural channel. This is a new phase 
 of economic culture that has come to us from the United 
 States. The corporations control markets, and give 
 mankind their laws. Little can be accomplished by 
 direct coercive measures. The most correct and efficient 
 means of remedying the evil is to apprehend human 
 nature down to the bottom, and to permit the individual 
 to withdraw from the combination at any time.^ Then 
 the system will crumble away of itself. And if the 
 attempt is made to perpetuate it in the form of trusts, 
 individual management being embraced in one great 
 whole, individual interests will again lead to the col- 
 lapse of such artificial formations and will destroy the 
 excrescences of the associational instinct. 
 
 How impolitic are all laws that proceed only by 
 prohibitions! We must fight human nature with itself! 
 
 10. It is the province of legal history to describe 
 the technical development of the law of obligations 
 beginning with the stage where the debtor pledged 
 his body and his life, up to the time when the bare 
 obligation sufificed, and ceased to operate against the 
 person, and attached only against what envelops it, prop- 
 erty. It is only necessary to emphasize the following 
 point of view. The law of obligations, which on the 
 one side is rooted in the sacredness of religion, finds its 
 support, on the other side, in the relations of power be- 
 tween the creditor and the debtor. The debtor is origi- 
 nally the needy one, and he offers himself to the creditor, 
 subjugates himself to him as a slave and servant: in 
 this situation, it is possible for the creditor to squeeze the 
 value of the debt out of the person of the debtor and 
 
 < See "Ideale im Recht," p. 58, seq. This proposal was ignored and bo 
 of course a dilemma arose. 
 
142 THE LAW OF PROPERTY [CH.VII 
 
 his family in most rigorous fashion. This conception 
 is strengthened in periods during which slavery is cus- 
 tomary.* Military slavery and slavery for debt, stand 
 side by side; but even earlier, the view arises that the 
 military slave is a foreigner, the slave for debt, a mem- 
 ber of the tribe. If the desperate expedient is not 
 adopted of selling the debtor slave out of the country, 
 if he is to be kept at home, the tendency will be to free 
 him from the hard conditions of slavery, and to amelio- 
 rate his lot. Thus gradually the debtor-slave becomes a 
 debtor-laborer, a pawn, and he may be redeemed. 
 (Compare p. 94.) 
 
 If the power of the creditor is thus weakened, and 
 set within definite limitations, the law of obligations 
 must be built up on another basis. 
 
 A pledge of future action takes the place of pledge of 
 the person. Obligation involves a "shall," that is to 
 say, a command determining conduct, directed to a 
 certain person, and which he must obey if he wishes 
 to be an unexceptionable and unblamable member of a 
 legally ordered society. In this way, the idea of duty 
 appears, the idea of a connection between the individual 
 and the community consisting in this, that the individual 
 must sacrifice his will to the whole and must serve it. 
 
 11. Obligation also has its place in moral philosophy. 
 There, too, it concerns the relation of the individual 
 to the whole, in as far as the latter is the guardian of 
 moral endeavors. There, also, it is a command to the 
 individual to be moral and to act morally. 
 
 12. This duty has been much exaggerated, and by 
 nobody more than by Kant and his successors, who saw 
 in the combination of the categorical imperative with 
 metaphysics (which Kant himself rejected, or at least 
 declared to be unproven), the salvation of humanity. 
 
 > See above, p. 92. 
 
115] THE LAW OF OBLIGATIONS 143 
 
 In reality, it is not a rigid command but the participa- 
 tion of the individual in the whole that produces duty; 
 hence it follows that: 
 
 (a) It is evidence of a higher state of morality if the 
 individual' does not regard the command as such, but 
 is so much in unity with the whole, in his thoughts and 
 feelings, that even without a special command he ful- 
 fills the duties of the law and morality. 
 
 (b) So much the more is the view to be rejected, 
 that morality consists only in obeying a commandment, 
 in opposition to one's self and one's own wishes and 
 aspirations. This only is true, that when the indi- 
 vidual's sense of the unity of all is not yet so far 
 developed that conformity to duty has become second 
 nature, he should nevertheless fulfill this duty and 
 must therefore, if necessary, perform an act of self- 
 conquest. 
 
 13. The binding power of the promise has generally 
 been made dependent on this, that the creditor accepts 
 the promise, that is, agrees to it. The reason for this 
 is obvious: it is not desired that other people should 
 interfere in our affairs. Some performances may be 
 very inconvenient for the creditor, some burdensome, 
 some even quite detrimental; especially, if a man could 
 be reproached with plundering other persons, or abusing 
 an office or position in order to receive gifts from others. 
 In any case, it is in accordance with healthy com- 
 merce, if one always remains the master over his own 
 property. 
 
 Historically, a peculiar element contributed to this 
 result, namely, that the creditor took possession of the 
 debtor and controlled his person. In that case, of course, 
 action was necessary on the part of the creditor, and he 
 had to dispose of the debtor in some way, if the latter 
 put himself at his service. 
 
144 THE LAW OF PROPERTY [Ch.vII 
 
 If, notwithstanding, cases have developed in which 
 the creditor became entitled through the mere unac- 
 cepted promise of the debtor, various circumstances 
 have been determinative in producing them. 
 
 If a man vowed something to the gods, he was im- 
 mediately bound; for everyone believed that the gods 
 themselves accepted, and so it came about that obli- 
 gations to the city (to the gods of the city) were often 
 declared binding without further formalities. But, above 
 all, it is very comprehensible, that the debtor should 
 assume an obligation to everyone who enters into a 
 certain relation to a thing or matter; for, in this case, 
 the creditor is at liberty to enter into such a relation or 
 not, and thus he does indirectly accept the promise and 
 apply it to himself. Here belongs, especially, the case 
 of the debtor who promises to be liable to anyone who 
 holds a certain paper; for it rests with the creditor 
 to acquire the paper, or to dispose of it again; thus, he 
 does not become the creditor against his will, or at least, 
 the creditorship is not forced upon him. This, too, was 
 originally religious; the thing, the staff, the parchment 
 to which the right adhered was the representative of the 
 oaths which the person swore, the acceptances that 
 he gave, the curses that followed the breaking of the 
 agreement. 
 
 2. Development of the Law of Obligations 
 
 1. Developed culture requires ethics in legal inter- 
 course, and rejects the standpoint which it formerly 
 tolerated, that one party to an agreement might treat 
 the other deceitfully. Instead of being bound to his 
 word, he becomes bound to the faithfulness expressed 
 in the word. But faithfulness in legal commerce is 
 truthfulness, and it is this that one party to an agree- 
 ment owes to the other. By this means commerce is 
 
515] THE LAW OF OBLIGATIONS 145 
 
 raised to a higher plane, human nature is clarified, and 
 at the same time economic life is promoted ; for even if 
 the individual himself profits by deceit, yet this injures 
 and benumbs commerce as a whole: here one man's 
 advantage is the other's disadvantage, and also the dis- 
 advantage of the community. Where there can be no 
 confidence, commerce will draw back timidly; where- 
 fore, it is only in the nations that have worked their 
 way up to truthfulness, that economic life has flourished 
 to its full capacity. 
 
 2. But the duty of truthfulness does not exclude 
 secrecy, and everyone is entitled to secrecy regarding 
 individual things; provided, these individual things do 
 not themselves become the object of the right. If any- 
 one enters into a contract of service, information regard- 
 ing his ability to perform the service belongs to the 
 truthfulness of the transaction. All those circumstances, 
 on the contrary, that have caused an individual to enter 
 into any agreement, are separate from the transaction; 
 they are justifiably the secret of the person. Accord- 
 ingly, legal commerce develops in such a way that all 
 those motives are unimportant to the existence of rights, 
 and that legal consequences take their course with no 
 regard to what external and inner conditions have 
 existed in the parties to the agreement, that have de- 
 cided them to make the agreement. 
 
 3. The reason for preserving this secrecy is a healthy 
 egoism which is one of the chief motive powers of a 
 thriving commerce. Egoistic impulses are much stronger 
 than those of philanthropy, and if we should let the 
 latter alone hold sway, many of humanity's tasks would 
 remain unfulfilled. Therefore, culture must allow a 
 healthy egoism to rule, and the law must not become 
 the upholder of those powers that might benumb and 
 undermine culture. Hence, every party to an agree- 
 
146 THE LAW OF PROPERTY [Ch.VII 
 
 ment has the right to secrecy in respect to his specula- 
 tion: that is his own peculiar advantage, for the attain- 
 ment of which he acts. It is his speculation, resting on 
 considerations of the legal relations, and the judgment of 
 men, and it is often more a matter of inner impulse and 
 conviction than of conscious activity of the mind. 
 Thus, for instance, when a man buys wares, because he 
 believes that there is a demand for them in another place, 
 where he can dispose of them with profit; he need not 
 impart this fact to the other party to the agreement, 
 nor need he tell him, if he has received information that 
 would lead one to expect a rise or a drop in the price. 
 And, if someone comes to the conclusion that a certain 
 place would be advantageous for building purposes, 
 and he buys up property with this end in view ; he need 
 tell the other party to the agreement neither his reason, 
 nor the fact that he intends to acquire a large tract of 
 land. 
 
 The justification of secrecy, as against the duty of 
 truth, is the difficulty encountered in this sphere of law. 
 The doubts that arise in this connection can be decided 
 by assuming that the custom of dealing determines what 
 information may or what may not be expected. Healthy 
 commerce has a very true sense of what. one may be 
 expected to impart, and what is so private in its nature 
 that it would be impertinent to ask for it. 
 
 If it is a matter of justifiable secrecy, it would even be 
 admissible to defend one's self against the impertinent 
 inquiries of a curious person, and to put him off with 
 prevarications. This would not be an infringement 
 of the truth expected in dealing, such as one is entitled 
 to expect. When the fanatics of truth object to this 
 view, they merely show that as literalists they have 
 failed to perceive the inward significance of human 
 relations. 
 
§15] THE LAW OF OBLIGATIONS 147 
 
 4. When parties to an agreement enter into relations, 
 according to which one owes the other some performance, 
 the following ethical idea necessarily develops: as long 
 as the performance has not been completed, the obligor 
 is not only bound to the performance, but is also obli- 
 gated to devote himself to the interests of the other with 
 reference to the future performance. For he must imme- 
 diately recognize that he is no longer acting for himself, 
 but for another's property, and in regard to another's 
 property he may not act as in his own affairs. This too 
 is an ethical principle: one may act as he wills as to 
 himself, but he must deal with the other party to an 
 agreement consistently and considerately. 
 
 This ethical principle will also, of course, considerably 
 advance economics, for the more confidently considera- 
 tion may be expected in obligatory relations, the more 
 certain can one be of performance, and the more pos- 
 sible does it become to make the expected performance 
 the basis of speculations. 
 
 5. As regards the care element in obligatory relations, 
 the law has certainly had to concede and to add some- 
 thing. The highest care cannot always be exacted; 
 and here two points of view come under consideration 
 which are rooted in human nature, and therefore almost 
 universally control our cultural rights. 
 
 (a) Whoever promises liberalities to another must 
 be more leniently treated as regards his care in carrying 
 them out; for if he were not liberal, the other would 
 receive nothing. Now, we can still keep the promise 
 of a gift and the performance of that promise separate, 
 and conclude that the fulfillment of the promise is the 
 fulfillment of a duty, not a new gift. Thus, we might 
 conclude, that with the promise of the gift the giver 
 ceases to be a giver, and thenceforward must be 
 responsible for utmost diligence to perform. But this 
 
148 THE LAW OF PROPERTY [Ch.VII 
 
 conclusion would be monstrous. It is incorrect to say that 
 from the moment when the donor takes the obligation 
 upon himself, he is no longer capable of generosity; for 
 the whole is a unity which is merely divided into two 
 parts by juristic technic. Hence, mature legal conscious- 
 ness will come to treat the giver, even after his promise, 
 in accordance with the principles of generosity ; and here 
 the standpoint follows as a matter of course — that as 
 regards the duty of care to perform, the giver must be 
 treated with greater indulgence, and must be called to 
 account only if he is guilty of actual unreasonableness. 
 The same applies to all liberalities, especially to unre- 
 munerated loans. 
 
 (b) According to a second point of view, where the 
 obligatory relations are between members of a family, 
 the view is maintained, not that one interest is coldly 
 opposed to the other, but that each one acts and strives 
 for the common interest and for the whole. But here, 
 each must be allowed to operate in his own way and 
 manner. The family cannot regard the other member 
 of the family as a stranger, and cannot expect him to be 
 different from what he is by nature and character; 
 hence, it follows, that in such cases, a liability that 
 exceeds the measure of what a man is in the habit of 
 performing in his own concerns does not conform to 
 the conditions of life. For a man can only be required 
 to deny his own ego when he acts for outside interests; 
 not when he is active in the interests of the family. 
 Accordingly, there arises the so-called liability for 
 culpa in concreto between man and wife, between 
 father and child, formerly also between guardian and 
 ward; and there is also the culpa in concreto in 
 partnership relations, for these had their origin in the 
 family; partnerships were formerly always composed 
 of family members, or persons who were taken into the 
 
515] THE LAW OF OBLIGATIONS 149 
 
 family. Even today, the partnership relation bears 
 this character, and it would be lamentable if the par- 
 ticular loyalty, confidence, and the intimacy in dealing 
 among the partners should decline : a partnership that is 
 not so constituted contains the germs of dissolution. 
 
 (c) It is also important for our problem to note 
 that perfect contract relations only later became such 
 by growing out of actual relations of fact. Special men- 
 tion may be made of agreements for the custody of 
 movable things. It often happened that one person 
 deposited some object, which he could not use at the 
 moment, with another, by his consent. The idea origi- 
 nally was not that this other should take care of the 
 object, but merely that he should allow it to remain, 
 and should refrain from appropriating it to his own use. 
 Only gradually did this develop into the duty of guarding 
 the thing, and taking the necessary steps to preserve it. 
 This was especially perceptible where animals were con- 
 cerned, which had to be fed and cared for, and also in 
 the case of plants, etc. Thus, gradually, the contract 
 of bailment developed, but, as is comprehensible, the 
 duty of the keeper still remained a light one, and he 
 was not held liable to the utmost care. 
 
 (d) Often, however, in the history of the law, the 
 tendency has also been clearly felt to make the liability 
 of the debtor heavier. Such tendencies are connected 
 with the economic situation, and have different mean- 
 ings. When, by agreement, a man takes a certain risk, 
 he seeks to compensate himself for this by an equivalent 
 in the performance rendered in return; and this equiva- 
 lent will be a kind of insurance premium which he either 
 receives himself or gives to another who takes over the 
 insurance of the risk. But these are ideas that did not 
 come until later, after the insurance idea had gained a 
 greater importance. 
 
150 THE LAW OF PROPERTY [Ch.VII 
 
 Such a liability is especially suited to large under- 
 takings which, in consequence of their capital, feel the 
 weight of such a burden less than would individuals, 
 and which may therefore be regarded as called upon to 
 aid in the equalization of human relations; this applies 
 in particular to railways and other large undertakings. 
 
 On the other hand, the extension of liability may also 
 be intended to prevent various excuses on the part of 
 the debtor who is apt to take chances and then deny his 
 carelessness. In other words, such a rule may be one 
 of those intended to coarsen the finer development of 
 legal relations, when it is recognized that this finer 
 development is unpractical, and must fail of its object 
 by reason of the incompleteness of human knowledge. 
 (See above, p. 30.) 
 
 Thus the change has been largely introduced that a 
 debtor is liable not for negligence alone, but generally, 
 and can offer perhaps no excuse but vis major. 
 
 Whether the one method or the other is better 
 depends mainly on circumstances; in particular, on 
 whether it is easy or difficult to prove absence of fault, 
 whether the heavier burden that is laid on the debtor 
 can justly be compensated by an equivalent, whether 
 security is possible or not, etc. A system that lies 
 between the two allows the debtor in such cases to take 
 a heavier liability upon himself, but only up to a cer- 
 tain amount so that he may not be unduly burdened. 
 
 3. Extinction of Debts 
 
 1. Obhgations may be continuous; as, for instance, 
 an obligation to refrain from something, or an obUga- 
 tion requiring repeated acts; for instance, the payment 
 of a continuing annuity; or they may be temporary, so 
 that they cease with a momentary act which represents 
 just what is essential in the liability for the debt: the 
 
115] THE LAW OF OBLIGATIONS 151 
 
 obligatory relation then dies at its zenith; it dies when 
 what it was intended to attain for humanity has been 
 accomplished. 
 
 The obligation then is prepared to expire; it is extin- 
 guished by satisfaction, and especially by fulfillment, 
 that is, by that performance which is the object of the 
 obligatory relation. The theory of these performances 
 is one of the most interesting parts of civil law, but 
 cannot be further dealt with here. From the stand- 
 point of the philosophy of law only the following points 
 need be emphasized: 
 
 (a) Fulfillment must conform to the obligatory rela- 
 tion. It is inadmissible for the debtor to force something 
 else on the creditor in place of what he oweg. But, of 
 course, in individual cases the obligatory relation may 
 be such that the law gives the debtor the choice of ful- 
 filling the obligation by one thing or another ; for instance, 
 if the debtor is to deliver money the law may allow him 
 to deliver the value of the money instead; in that case 
 the legal system is so constituted that a money obliga- 
 tion is not purely a money obligation. It was thus 
 everywhere, before pajmient in kind gave way entirely 
 to payment in money. 
 
 (b) Fulfillment raises the opportunity to make an 
 assignment of performance to a third person, the creditor 
 giving the debtor instructions to pay another and the 
 debtor conforming to them. 
 
 (c) Under some circumstances, the obligatory rela- 
 tion must necessarily become extinguished if its purpose 
 is completely fulfilled, or if it has become purposeless; 
 for instance, if the person who is to receive payment 
 receives it through the gift of another." 
 
 2. The method of fulfilling an obligation was 
 originally unalterably determined by the nature of the 
 
 6 "Lehrbuch des burger. Rechts," II, p. 220. 
 
152 THE LAW OF PROPERTY [Ch.VII 
 
 obligation. Here, too, the mind of man has gradually 
 begun to be active: this gives rise to: 
 
 (a) The agreement of fulfillment according to which 
 the parties agree that something that is not fulfillment 
 shall serve as fulfillment. 
 
 (b) The direction, according to which the person 
 who is to receive payment is changed, and it is 
 determined, by the declaration of the creditor, that 
 payment made to another shall have the same result 
 as payment made to the creditor, (p. 151.) 
 
 (c) The arrangement that proceeds from an adjust- 
 ment of accounts with its further ramifications, running 
 accounts, etc. In this connection reference should be 
 made to the "Lehrbuch des biirgerlichen Rechts," 11, 
 p. 185. 
 
 4. Securities 
 
 (a) Pledge. 
 
 1. The pledge may be interpreted in two ways, and 
 has taken on two fundamentally different forms in the 
 legal systems of the nations. The object of the pledge 
 may serve to satisfy a debt, inasmuch as the creditor's 
 claim is settled with it. As yet, however, nothing final 
 has occurred ; for the debtor still has the power to redeem 
 the pledge, and until the question of redemption is 
 settled, the matter remains pending; but this does not 
 prevent the pledged object from amounting to a satis- 
 faction. It is so, if it is the aim of the pledge that the 
 thing shall by the operation of time, become the property 
 of the creditor. The change of ownership takes place 
 as soon as the redemption term has passed. The pledge 
 relation may, however, assume the opposite form, the 
 object becoming immediately the property of the creditor, 
 and the redemption being considered an act of re-pur- 
 chase. The matter is developed still somewhat differ- 
 ently if, on the expiration of the term of redemption, the 
 
§15] THE LAW OF OBLIGATIONS 153 
 
 object is, indeed, to be kept by the creditor, but that 
 he is to make settlement with the debtor for its surplus 
 value. In this case, the delivery of the pledge is, every- 
 where, the satisfaction of the claim. 
 
 2 . This form leads to the second fundamental interpre- 
 tation; according to which the delivery of the pledge is 
 not in itself satisfaction, but merely the means of satis- 
 faction. If the creditor turns the pledge into money 
 and pays himself with it, the idea is that the delivery 
 of the pledge does not discharge the debt, but that only 
 the acquisition of the money obtained from the pledge 
 operates as a discharge. Whereas, according to the 
 previous view, the intrinsic value of the pledged object 
 covers the creditor, so that afterwards, at the most, an 
 equalization has to be made, this interpretation requires 
 a sale, before there is satisfaction. 
 
 This latter interpretation has become so predominant, 
 and is so general in modem law, that we scarcely ever 
 think of the former interpretation until studies of com- 
 parative law remind us of it. It was, indeed, distinctly 
 present in the Germanic law, but it was not found pos- 
 sible to include it under a larger principle. 
 
 3. The practical difference between the two views is 
 this : according to the principle of satisfaction, the creditor 
 at once takes the risk, and if the thing is destroyed, he 
 cannot make a second demand on the debtor; for the 
 surrender of the thing has settled his claim, just as pay- 
 ment would have done. The thing is the creditor's 
 satisfaction; and, if, after being taken it is destroyed, 
 he must of course bear this loss; just as he would the 
 loss of money that the debtor had paid him. 
 
 The second view is entirely different ; for even though 
 the creditor holds the means of satisfying himself, yet 
 he has not the satisfaction itself. Thus, if the means 
 perishes, the debtor must give him another means of 
 
154 THE LAW OF PROPERTY [Ch.VII 
 
 satisfaction. The possibility of satisfaction is not the 
 same as satisfaction. 
 
 At most it may be asserted that the creditor to whom 
 the pledged object is delivered is the depositary of the 
 pledge, and is liable as such; and this liability can then 
 be more or less extended, according to whether he is 
 regarded as a remunerated or unremunerated depositary. 
 It accords with the nature of the transaction to regard 
 him as a remunerated depositary, as the delivery of the 
 pledge is made in his interest. 
 
 Although today this last standpoint is universal, a 
 few fragments of the former principle have remained, 
 as, for instance, the principle of our bankruptcy law, 
 that whoever has a pledge cannot bring forward his 
 whole claim at the meeting of the creditors, but only 
 the amount not covered by the pledge; and, also, the 
 principle in civil procedure, that whoever has a pledge 
 right cannot proceed against the debtor in as far as the 
 pledged object affords him satisfaction, etc. 
 
 4. A second important division of pledges is into 
 pledges delivered into possession (Besitzpfand) , and 
 pledges not delivered into possession ( Nichtbesitzpfand) . 
 In the first case, the pledge is delivered into the creditor's 
 keeping, so that he is not merely legally but actually 
 secured. In the latter, the debtor retains possession of 
 the thing, and the creditor is more or less dependent on 
 his honesty. 
 
 It is easy to understand that, in early times, the pledge 
 was commonly delivered into the creditor's keeping, 
 because the measures of the law were weak, and confi- 
 dence in dealing was not yet firmly established. This 
 arrangement was also desirable, because the transaction 
 was then made public to a certain extent. 
 
 On the other hand, it has the great disadvantage 
 that the debtor is thus deprived of the use of the thing : 
 
§15] THE LAW OF OBLIGATIONS 155 
 
 this may possibly bring his business to a complete stand- 
 still. Take, for instance, the case of agricultural imple- 
 ments given in pledge, without which the work of the 
 farm cannot be carried on. 
 
 And this is not only a disadvantage to the debtor, 
 but a universal economic disadvantage; for, as the 
 debtor cannot, and as the creditor will not, use the thing 
 — and the latter is, perhaps, unable to use it in most 
 cases — it is impossible for it to be used at all, and thus 
 humanity is deprived of the service of often very impor- 
 tant wealth. 
 
 5. This can be remedied by allowing the creditor to 
 use the thing, thus making it a usufructuary pledge 
 (Nutzpfand). This presupposes, to be sure, that the 
 creditor has a business or establishment in which the 
 pledge can be used, and this requisite obstructs one of 
 the main advantages of the pledge: the abstract nature 
 of its value. Nevertheless, in earlier times, when all 
 the subjects of the State were very similarly engaged, 
 this was more easily accomplished; and, in particular, 
 where agriculture predominates, it is very appropriate, 
 if a pledge consists of land that it be given over to the 
 use of the creditor; in which case, of course, the use of 
 his own land is simply extended to include the pledged 
 property. 
 
 This usufructuary pledge has played a great part, 
 and has served to make money fruitful, and to weaken 
 somewhat the prohibition of taking interest: the creditor 
 had the use of the thing, without the profits of this use 
 being deducted from his capital, or only a part was 
 deducted, and the remainder compensated him for being 
 deprived of his capital. (Compare p. 171 (4).) 
 
 This form of the pledge is less practical with movable 
 things; at least, when there is a great difference between 
 the occupations or establishments of individuals, so 
 
156 THE LAW OF PROPERTY [Ch.VII 
 
 that it is more or less a chance whether the creditor can 
 make use of the thing pledged. 
 
 6. All these circumstances have contributed to bring 
 about an arrangement whereby the debtor retains pos- 
 session of the pledge, and the creditor is not actually 
 but only legally secured. When the State has attained 
 a firm development so that the faithful conduct of the 
 debtor is legally assured, no great obstacles will oppose 
 this arrangement; hence it developed in the Orient, in 
 Greece and Rome, as well as in Germany. It is the 
 Roman hypotheca, and the newer principle of German 
 law. 
 
 Nevertheless this form has its considerable disadvan- 
 tages, because a man's financial condition is thus more 
 hidden than formerly. No one knows what is pledged 
 and what is not, and thus a wild chaos of legal relations 
 arises, from which escape is only possible by the adop- 
 tion of the principle, that when a person acquires a 
 pledged thing in good faith it is freed from the pledge. 
 But the financial condition of the debtor also becomes 
 more and more uncertain. The man who is supposed to 
 be well off is perhaps already overburdened with pledges ; 
 one evil involves another, and as each creditor seeks to 
 cover himself as far as possible, each will endeavor to 
 obtain a pledge of the debtor's whole property; in this 
 way the economic relations become more and more 
 entangled. 
 
 The attempt was made to remedy this by publicity, 
 so that everyone could see from a public record how the 
 debtor's credit stood. This proved very effective in 
 respect to land; hence the publication of mortgages 
 {Hypotheken) was adopted in Egypt, Greece, and later 
 in Germany and in all Germanic countries. It has not 
 been found as practical with movable things, however. 
 Two systems have been used, either the system of keep- 
 
§15] THE LAW OF OBLIGATIONS 157 
 
 ing public books, which, however, can only suffice where 
 movables of a certain durability are concerned, such as 
 agricultural, or manufacturing implements; or the sys- 
 tem of "marking" pledge-objects by sealing, etc. 
 
 Another disadvantage that arises when the pledge 
 remains in the debtor's possession cannot, however, be 
 avoided in this way: this arrangement furthers the 
 debtor's recklessness, and he is led to overstrain his 
 credit, and pledge everything that can be pledged, as he 
 suffers no inconvenience at the moment, and the "day 
 of reckoning" does not come till afterwards. 
 
 7. The pledge is not now turned into money by 
 being first given into the creditor's possession, but is 
 sold, and the proceeds are given to the creditor, or div- 
 ided among them, if there are more than one, accord- 
 ing to their priority. The manner of sale, whether by 
 private sale or public auction, is a matter of legal technic 
 and belongs to the civil law. 
 
 8. A later development displays the following ten- 
 dency: A distinction may be made between the original 
 thing and the thing as it exists after an improvement 
 has been made upon it. The improvement (Amelio- 
 ration) can only become separate property when it is 
 actually separable; as, for instance, a structure built 
 on a piece of land. But, if, for example, the land has 
 gained in value owing to irrigation, or drainage, the 
 improvement cannot be distinguished from the rest; 
 in this case, the improvement is not an addition but an 
 internal alteration. On the other hand, security rights 
 (Werirechte) may attach to the improvement, though 
 not in such manner that the right of security embraces 
 a component part of the thing, while another component 
 part remains unaffected ; but in such a way that in the 
 exercise of the right of security, that part of the value 
 which corresponds to the improvement, falls to the holder 
 
158 THE LAW OF PROPERTY [Ch. vii 
 
 of the security. This is the case with mortgages on im- 
 provements (Ameliorationshypotheken) , and they exem- 
 pHfy the great advantages of security rights which are 
 much more mobile, and conform much better to the 
 interests of humanity, than the more rigid rights of 
 servitude. 
 
 (b) Suretyship. 
 
 1. Suretyship originally meant the giving of a hos- 
 tage, the debtor being released by a new debtor, either 
 at once or when the need arose. Not until later did 
 suretyship change its character so that it implied an 
 addition to the debtor's credit instead of an attachment 
 of the person. 
 
 The principle of giving pledge of a hostage is based 
 on the idea of representability, one person being con- 
 sidered as fitted as another to assume the liability for the 
 debt and thus to satisfy the creditor. This applied not 
 only to obligatory relations of an economic kind, but 
 also to penal obligations, a surety taking the place of the 
 guilty subject. Here, too, we find the idea of equiva- 
 lence, resting on the view which at that time domi- 
 nated criminal justice, and did not necessarily connect 
 the punishment with the perpetrator, but even extended 
 it to other persons. 
 
 2. To act as surety was considered the special duty 
 of the members of the family; this was an outgrowth 
 of the earlier idea of the collective liability of the family. 
 While formerly, by virtue of the law, the family was 
 liable for the individual, the later form reversed this, 
 so that the individual took upon himself the liability 
 for other members of his family. 
 
 3. Suretyship does not, of course, aim at subjecting 
 the surety to the debtor's difficulties; rather, it is under- 
 stood that he is to be released by the debtor's doing what 
 
515] THE LAW OF OBLIGATIONS 159 
 
 is necessary to satisfy the creditor either economically 
 or by undergoing the penalty. Not to protect the surety 
 against liability was a reprehensible breach of faith, 
 and whoever was guilty of it not only incurred the 
 blame of society, but the surety was allowed to proceed 
 against him rigorously. At first, this so-called recourse 
 developed within the family, and the State paid little 
 attention to it originally; because the family kept order 
 in its own circle, and of its own accord revenged all 
 negligences and failures on the part of its members to 
 perform their duty. 
 
 4. Suretyship was a liability of the person. It was 
 not a trade obligation but a personal intervention for 
 another; hence the principle that suretyship expires 
 with the surety ; it is not handed on to the heirs. 
 
 5. But this leads to serious evils, for the debtor is 
 freed from the creditor by virtue of the suretyship, 
 and then the creditor loses the surety also. 
 
 Of necessity, then, the rule developed, that in such 
 cases the debtor must produce g, new surety, or must 
 again offer himself, and this brings about a far-reach- 
 ing change in the institution. As long as obligations 
 existed only for a short time, this condition of affairs 
 either did not occur at all, or had no effect deep enough 
 to influence the institution to any considerable extent. 
 But, when long-continued obligatory relations arose, 
 it was necessary to provide for the creditor in the way 
 mentioned; and this gave rise to the rule, that by pro- 
 curing a surety the principal debtor is indeed freed, 
 but not completely; he must again become answerable 
 if the guaranty of the surety fails. This conditional, 
 further liability of the debtor gradually grew to 
 be unconditional; and so it came to be that both 
 the debtor and the surety were liable to the creditor — 
 a condition that would have been impossible, accord- 
 
160 THE LAW OF PROPERTY [Ch.vii 
 
 ing to the views held in earlier times; for then the 
 principle was maintained: one debt, one debtor. 
 Gradually the debtor's liability became so conspicuous 
 that some systems of law have forced the surety entirely 
 into the background; so that he is answerable only 
 if the debtor fails in some way to perform. What is 
 called the beneficium excussionis, according to which 
 the surety may require that the creditor first proceed 
 against the debtor and resort to the surety only if this 
 attempt is unsuccessful, is a very meager institution 
 and one that discourages credit, for it makes the credi- 
 tor's security unstable. The security of credit requires 
 not only full, but also easy satisfaction to the credi- 
 tor; in order that credit may be easily obtainable, it 
 is necessary not only that the creditor be paid, but also 
 that he attain his object quickly and without trouble. 
 Hence the idea, that appeared in Germany in the Middle 
 Ages, that the surety may require the creditor to pro- 
 ceed punctually against the principal debtor, so that the 
 latter may hot become insolvent and thus cast the bur- 
 den on the surety, is entirely at variance with the mean- 
 ing of the institution and deprives it of a great part of 
 its value. The only proper course, in such a case, is to 
 allow the surety to proceed against the debtor, and to 
 leave it to him, whether he will do so; so that the debtor 
 may be compelled to give the surety security, or to re- 
 lease him (either by finding another surety or in some 
 other way). 
 
 6. The institution of suretyship has attained par- 
 ticular importance today, through the fact that sureties 
 often appear for juristic persons and guarantee their 
 obligations; especially is this the case as to members of 
 partnerships of unlimited liability, and with members of 
 co-operative societies. In the latter case, there are serious 
 social objections; wherefore the attempt is made to 
 
§15] THE LAW OF OBLIGATIONS 161 
 
 lighten the responsibility of such members; it should only 
 be recognized if the society becomes insolvent, and then 
 the individuals should be spared as far as possible, 
 (p. 162 (4).) 
 
 (c) Joint Liability. 
 
 1. The certainty of fulfillment can also be increased 
 by joint liability. 
 
 2. Joint liability affords a strong guaranty of per- 
 formance; not only is all the property of the joint 
 debtors subject to the creditor, and subject to be dis- 
 posed of if necessary by execution, but even the per- 
 sons of all the debtors are made subject to him — a 
 remedy of great efficacy in the days when pledge of the 
 person was allowed, but which even now is not without 
 significance. Although the law may have advanced to 
 the point where the body pledge is unknown, yet the 
 personality of the debtor affords a strong guaranty to 
 the creditor, because the debtor's failure to meet his 
 obligations may injure his position in society; so that 
 in any case his personal undertaking is an important 
 security for the fulfillment of an obligation. To this 
 is added the following consideration: in the fulfillment 
 of an obligation, not only the person's wealth and whole 
 position must be taken into account, but also his char- 
 acter and his customary behavior. There are persons 
 who are unaccommodating in their relations to creditors, 
 who are apt to make difficulties for the latter, and feel 
 no pricks of conscience if they fail to fulfill their obliga- 
 tions. Others are conscientious, and look upon it as a 
 matter of honor to be punctual in this respect. Some are 
 quarrelsome, ever ready to find points of disagreement, 
 and thus trouble the creditor, while others are peaceful 
 and give way rather than oppose him. 
 
 3. Consequently, it is of a great importance, if the 
 
162 THE LAW OF PROPERTY [Ch.vii 
 
 creditor has several debtors for the same performance, 
 so that he is able not only to make demands on their 
 property and personality, but also to create for himself 
 as great a security as possible, by making use of the 
 different psychic dispositions of the debtors. Hence, 
 it is a fundamental condition for the successful existence 
 of a joint obligatory relation that the creditor should 
 be able to choose which of the debtors he will claim, 
 because, as has been said, not only wealth and position, 
 but 'character and business methods enter into the 
 question. 
 
 4. It is true, however, that a less pronounced kind 
 of joint liability is conceivable, if the personal element 
 should be withdrawn, and only the collective property 
 remain as a guaranty. In such a case, it is reasonable 
 for a debtor to require that the creditor distribute his 
 demand among all the solvent joint debtors; and where 
 the obligation rests upon a large number of persons, for 
 instance as in a co-operative society, this system has a 
 particularly practical significance; as here, the partici- 
 pation of the personality is withdrawn, on the one hand, 
 and, on the other, the collective liability of the individual 
 members overshoots the mark, and may lead to difficul- 
 ties for the individual, even to his financial ruin. It is 
 suitable in such cases to lessen the collective liability, by 
 distributing the debt among the members who are able 
 to pay. 
 
1 16 1 BARTER 163 
 
 SECOND DIVISION 
 THE LAW OF OBLIGATIONS IN DETAIL 
 
 FIRST SUBDIVISION 
 
 SECTION XVI 
 BARTER 
 
 1 . Barter of Things 
 (a) Foundations. 
 
 1. Barter is based on the idea of equalizing values. 
 A man gives something and receives something in return, 
 and this relation of giving and receiving is not governed 
 by chance; rather, the persons stand in an economic 
 relation to each other, a relation in which values are 
 equalized. The tertium comperationis of both acts is 
 the equivalence of their value. 
 
 2. The barter value- is not the same as the value in 
 use; for it is not the value that is determined by the 
 individual's need, but by the value that is fixed by the 
 social function of the article in general commerce. 
 Under value in this sense, we understand the extent of 
 the economic worth of an article, which is determined 
 by its comparison with other wares and their economic 
 uses. It is incorrect to say (with Marx), that value 
 always corresponds to the labor that the article repre- 
 sents. Value is rather determined by a whole series of 
 secial factors: the demand for the article, the effort to 
 obtain it, the greater or lesser frequency with which it is 
 offered for sale, the facility with which it is obtained, 
 
164 THE LAW OF PROPERTY [Ch.VII 
 
 and its greater or lesser rarity, which is by no means only 
 a matter of labor conditions but is rooted in natural 
 circumstances. All these factors will affect value, and 
 will cause the thing — even though it may always rep- 
 resent the same amount of labor — to assume sometimes 
 a greater, sometimes a lesser social importance. 
 
 3. It is not only need that is of importance in barter. 
 A number of other, mainly psychic circumstances come 
 under consideration, especially the human love of variety 
 which is strongly developed, particularly in nations 
 that have little self-control and little mental culture. 
 Men grow tired even of what is best and most beautiful 
 and want something else. Then, too, the psychic needs 
 that are esthetic or partly esthetic in their nature have 
 to be considered. People want what dazzles and 
 attracts them, what appeals at the time to their sense 
 of beauty, or rather their mental aspirations. The sud- 
 den, unaccountable popularity of a thing, the immeas- 
 urable attraction that some article has for people, often 
 plays a great part. 
 
 4. It is a misconception to assert that barter grew 
 out of the division of labor. The division of labor 
 naturally increased the need of barter; for whereas, 
 formerly, it might have been possible for the individual 
 to satisfy his own needs and longings himself, it ceased 
 to be so as soon as the individual was limited to the pro- 
 duction of certain definite wares. It is true only, that 
 while otherwise the tendency favoring barter transac- 
 tions was based more or less on chance, the whole system 
 of economic production made it essential. (Compare 
 p. 129.) 
 
 5. The backbone of barter is, as has been said, the 
 equalization of value. This idea of equalization in- 
 creases, as soon as articles are produced which are not 
 regarded as a means of satisfying personal needs, but 
 
§ 16 ] BARTER 165 
 
 are intended to represent values. While, otherwise, 
 value is an x which is contained invisibly in the objects 
 a and b, value now, at least on one side, appears openly. 
 It is no longer an x but a certain quantity, v, and the 
 question of value which otherwise comes under consid- 
 eration in respect to both the objects a and b (because 
 in both value lies invisibly dormant), need now be con- 
 sidered only in connection with the article a, since the 
 exchange value of the value-representative, v, is given, 
 representing clearly and unmistakably to everyone a 
 definite value. In this way money originates. This not 
 only means great progress in the valuation of things, 
 it being possible to reduce the value of everything to 
 a money unity, just as when we bring all fractions 
 under one denominator;' but a second advantage is 
 involved, — an advantage with the most momentous 
 consequences, — that the value-representative, money, 
 is not, at the same time, a means of satisfying any one 
 special human purpose. If one who wishes to dispose of 
 article a, wants to obtain article b, he must, in a period 
 in which barter is the only means of commerce, seek a 
 person who wants article a, and at the same time has 
 article b to dispose of. In other words, the transaction 
 as regards a and b depends upon chance — chance on 
 both sides, in fact — for the sale can only take place 
 if one individual wishes to dispose of a and obtain b, and 
 the other wishes to obtain a and dispose of b. This is, 
 of course, a powerful obstacle, and not only imposes 
 difficult conditions on the barter transaction, but neces- 
 sitates a great deal of human effort, till finally, an oppor- 
 tunity is found that combines both requirements. , 
 
 It becomes necessary to eliminate this chance, and 
 one of the principal means of accomplishing this is the 
 introduction of money; for if one wishes to dispose of 
 
 ' "Einfiihrung in die Rechtswissenschaft," p. 69. 
 
166 THE LAW OF PROPERTY [Ch.vii 
 
 article a and obtain article b, he has only to find a person 
 who wants a, and will give him the value-representative, 
 money, for it. With this value-representative, he can 
 now seek some one else who wishes to dispose of article 
 b, and in this way he succeeds in acquiring article b 
 instead of the article a which he possessed. Here the 
 contingency is only on one side ; the sole chance is, that 
 some one wishes to acquire article a, and further that 
 some one else wishes to dispose of article b. Separated 
 in this way, the contingency is much more easily 
 overcome than when it is combined. If the simple 
 chance occurs in perhaps fifty per cent of the cases, 
 the combined chance occurs in only about ten per cent of 
 the instances. 
 
 6. In order that money may come into use, things 
 must enter into commerce that are most generally used, 
 and which are fairly uniform in value. When this is the 
 case, the custom will gradually grow up of giving an 
 article for such an article of general use, which is much 
 easier to find and circulcites more freely in commerce 
 than any other. When it has become usual, instead of 
 satisfying one's wants directly by barter, to seek first 
 for such an article, and then to find the man who wishes 
 to dispose of the thing desired, the peculiar use of the 
 article will be less and less considered, and it will become 
 more and more a representative of value until finally 
 it comes to be regarded only in the latter aspect. Among 
 peoples that live by hunting, such articles are chiefly 
 animals' pelts, which everyone needs; among cattle-rais- 
 ing peoples, cattle. Different kinds of animals acquire a 
 general value-significance; small cattle (calves, sheep, 
 goats, and pigs) represent a certain value, large cattle 
 another; and, as medium sized animals are the standard, 
 the size of the individual animals does not matter. 
 This is made especially easy among pastoral tribes, 
 
§ 16 ] BARTER 167 
 
 by the fact that one shepherd has all the animals of the 
 place in his keeping; so that the transfer can be made 
 simply by re-branding those that have changed hands. 
 
 The disadvantages of using animals in this way appear 
 as soon as the institution of money becomes more 
 developed; for then money must not only be a repre- 
 sentative of value, but also a means of keeping or stor- 
 ing value, and a means of dividing it. This presupposes 
 that the articles have a certain permanency, and do not 
 decay after a time; also that they do not require con- 
 stant attention, as is the case with animals. Thus, 
 instead of pelts or animals, leather money comes to be 
 used. Hence, also, some nations use shells and other 
 permanent objects of value. But it should also be pos- 
 sible to represent different degrees of value, from the 
 smallest to the greatest, for if the objects a, b, c, having 
 different degrees of value, are exchanged, the value-repre- 
 sentative must be such that the value of c, b, c, can 
 be represented. This is only possible if it is divisible, 
 which is not the case with animals, but is with leather 
 and shells, inasmuch as a larger or smaller number can 
 be strung together. 
 
 But metals have all these qualities in a much higher 
 degree ; hence, it soon occurs to peoples that have metals 
 to give up all other value-representatives, and to use only 
 metallic money; ore, of course, at first, and then, when 
 the production of gold and silver is sufficiently developed, 
 these metals too. 
 
 The division of value, when metals are used, presup- 
 poses of course that weighing scales are always at hand, 
 on which the quantity can be weighed that corresponds 
 to the value ; until, at last, the new idea arises of mark- 
 ing on a piece of metal the amount of metal it contains, 
 and in such a way that it is universally credited. 
 Thus coined money originates. Coined money has two 
 
168 THE LAW OF PROPERTY [Ch.VII 
 
 qualities : it is a value-representative in itself, and it is a 
 value representative with a publicly announced metal 
 content. 
 
 In this way, the public offices that mark the pieces of 
 metal gain a tremendous influence over money. Soon 
 the idea of allowing semblance to take the place of reality 
 appears more and more persistently. The State begins 
 to make out false certificates, to coin or mint money, 
 that is, to stamp the coin with a higher value than the 
 true value of the piece of money. If this is done secretly, 
 and in order to deceive the people, it is immoral and 
 leads to the destruction of public confidence. Whenever 
 it has been done in this way, it has always ended in a 
 period of confusion and disorder. It is entirely differ- 
 ent, however, when the semblance is not intended to 
 deceive, when the stamp is not supposed to convey the 
 idea that the coin contains a certain amount of metal, 
 but only that it is to be used as if it contained that 
 amount. In this way fractional currency and paper 
 money arise. 
 
 7. Even after the introduction of money one element 
 of contingency still remains, and this element the inter- 
 mediaries of commerce seek to eliminate as far as pos- 
 sible. This kind of commerce consists of acquiring 
 goods not for one's own use but in the expectation that 
 others will need them. They are kept in stock on* the 
 chance of their being wanted. The result of this is that 
 if some one wishes to sell article a, it is not necessary for 
 him to find a person who needs this article ; he has merely 
 to go to the middleman: and similarly, if he wishes 
 to buy the article b, he need not seek a person who 
 happens to have such an article, and is willing to sell it; 
 he need only apply to the middleman who, without him- 
 self being in need of any special article, disposes of the 
 object b for money. The progress of culture can be 
 
S 16 ] BARTER 169 
 
 perceived in this process, inasmuch as chance is eliminated 
 as far as possible, and man overcomes the obstacles that 
 nature and society throw in his path. 
 
 (&) The Evolution of Barter. 
 
 1. At first all barter transactions were promptly and 
 immediately completed, particularly barter between 
 different tribes, which developed as private commerce. 
 But, even among members of the same tribe, a thing was 
 given for a thing received at the time. To give some- 
 thing for a thing that is to be received in the future 
 presupposes an economic mind that is directed toward 
 the future, which primitive peoples did not possess, and 
 which some peoples never attain, (p. 28 (2) .) When sale 
 takes the place of barter, the idea of credit will arise 
 much more easily; though, even then, the mind is not 
 able to renounce the idea of a bargain for ready money. 
 Thus, if a man wishes to buy something and pay for it 
 later, he does it indirectly by paying the price "con- 
 structively," and then receiving it again as a loan. By 
 this method two transactions are combined that grad- 
 ually become one: the "constructive" payment is no 
 longer taken into account, and the return of the loan is 
 treated as a part of the original transaction. 
 
 2. Barter has accomplished its object when each 
 person not only possesses his goods, but owns them. 
 The mere acquisition of possession will not serve. The 
 man who does not own the things he possesses cannot 
 dispose of them, and his relation to them is not the mas- 
 tery that the individual should obtain over natural 
 objects. Hence, it naturally follows, that as long as he 
 does not own the goods, the object of the barter has not 
 been accomplished. Moreover, the acquisition of alien 
 things is an encroachment on alien property, and is 
 therefore ethically to be severely blamed: the syste- 
 
170 THE LAW OF PROPERTY [Ch.VII 
 
 matic purchase of alien things would be nothing but the 
 continued appropriation of others' property, and would 
 exhaust the marrow of ownership. It follows that 
 barter is ethical only when it is so treated that one per- 
 son acquires ownership and the other refuses either to 
 give or take goods of another. Hence, if the vender has 
 unknowingly sold something belonging to another, he 
 cannot be required to deliver it, in spite of his agree- 
 ment; for he can declare that he will not continue the 
 dishonest course, but intends to return the article to its 
 owner.' 
 
 It is quite another matter, of course, if both parties 
 agree about a thing, on the supposition, and in the 
 expectation, that the owner will consent to its sale. 
 
 2. Barter of Value. — Interest 
 
 1. Just as in the law of things there is a right of 
 security as well as a right of servitude, so too in the 
 law of obligations there is a barter of value {Werttausch) , 
 that is to say, a value, a money value being given for a 
 money value. But as value and value are naturally 
 equivalent, the exchange can only take place with a 
 difference in time: one and the same value takes on a 
 different significance when present value and future 
 value stand opposite each other. Thus, all business 
 that has to do only with money values is a business that 
 exchanges a present for a future value. 
 
 2. In the closest relation to the use of capital stands 
 the theory of interest. In the life of primitive peoples, 
 where the production of value is generally agricultural 
 and little free or available capital is found, the loan is 
 
 The fact that Roman law taught the opposite is a monstrosity to be 
 understood in the hght of history. It is less comprehensible that, in 
 spite of my' explanations, its justification was attempted from a legal 
 philosophical standpoint. Compare "Archiv f. btirgerl. Recht," Vol. 
 XXX, p. 164, also my "Gesammelte Abhandlungen," p. 224 (respec- 
 tively 1883 and 1877). 
 
§ 16 ] BARTER 171 
 
 nearly always consumable in its nature: it is given either 
 in moments of dire need, or in moments of recklessness. 
 In this case, it is comprehensible if it is thought to be 
 hard if neighbors and members of the same tribe require 
 the return not only of the capital, but of something more 
 as well. A man should aid his neighbor, and not make 
 his necessity a source of profit; and if he abets his reck- 
 lessness, the matter should be so arranged that he suffers 
 by it as little as possible. This is the origin of the rule 
 that forbids the taking of interest. The prohibition 
 accords with the times in which the use of free capital 
 was rare. 
 
 3. But it continued in later periods, and in this, 
 two motives were concerned. First, a speculative one, 
 the idea that the future is still a zero, and cannot be 
 made the object of agreements; something that is now 
 present should not be given for something that thus 
 belongs to the future. This idea, which has already 
 been discussed on p. 28, has been carried out by the 
 nations even in regard to interest; and they have as- 
 sumed, that in this respect, trading with future values 
 is still less admissible than where physical products are 
 concerned. For, even if free capital brings advantages, 
 yet these are not as tangible as products; they are 
 profits that appear sometimes in one way, sometimes 
 in another ; profits that are difficult to separate from the 
 results of work and the success of speculation. Hence, 
 they are less the subject of agreements than are future 
 physical products; and, thus, the idea of the sterility 
 of money develops, an idea which the Scholastics of the 
 Middle Ages spun out to great lengths. 
 
 4. An additional motive was the inherent impulse 
 to increase individual activity, and to prevent the 
 individual from retiring with the proceeds of his prin- 
 cipal. In this respect, the prohibition of taking interest 
 
172 THE LAW OF PROPERTY [Ch.VII 
 
 long exercised a favorable influence. Anyone who has 
 available capital should seek to make use of it himself, 
 in agriculture, industry, or trade; the division between 
 capital and labor that exists today would have been 
 impossible at that time. Whoever wanted to live on 
 his capital was obliged to pay some attention to its em- 
 ployment, and could not simply draw the interest on it 
 without considering what was being done with it. One 
 kind of investment was the usufructuary pledge, the 
 capitalist taking a piece of land into his possession in 
 return for money lent. He was allowed to use the pro- 
 ceeds of the land, as these were not interest but the 
 results of the use of the land, and for this land he had 
 given his capital. But this method gradually fell under 
 suspicion, and it was difficult to refute the idea, that the 
 capitalist should really credit the proceeds of this land to 
 his capital; and so it happened, that in time even this 
 method of appljang capital was declared to be usury, 
 and it was looked upon as if interest were taken instead 
 of merely what the land produced. (Compare p. 155 (5)) . 
 
 Another transaction of this kind, was the purchase 
 of an annuity {Rentenkauf) , which consisted in a man's 
 receiving for his capital a perpetual income from a piece 
 of land. The capitalist might not demand the return 
 of his money, but the debtor, on the contrary, was 
 allowed to redeem the sums paid as part of the annuity. 
 These sums were not regarded as interest, because a 
 capital debt (Hauptgutschuld) was necessary to a debt 
 that bore interest. That there was much disapproval 
 of this transaction is easy to understand. 
 
 These two arrangements made it possible to circum- 
 vent the prohibition against interest, though not en- 
 tirely, for after all, the usufructuary pledge creditor 
 was obliged to occupy himself with the cultivation of 
 the soil, and whoever lent his capital for a perpetual 
 
§ 16 ] BARTER 173 
 
 annuity could not prosper unless he kept an eye on the man 
 who paid the annuity and the condition of his land. It was 
 sometimes necessary for him to provide for the further 
 cultivation of the land, so that he might not suffer himself. 
 
 5. In trade, too, the capitalist had to take part in 
 the business, if he wanted his money to be productive. 
 But it was possible for him to have an associate who 
 performed most of the active duties, so that he was little 
 more than a supervising spectator. This is the form 
 of partnership {Kommenda-Geschdft) which developed 
 equally in the Orient and in the Occident, and by which 
 a capitalist provided a man engaged in commerce with 
 the opportunity of gaining money in an agreement 
 for a division of the profits. Thus, the partnership 
 relation was a deviation from the rule, and it was pos- 
 sible to draw proceeds from capital, even if the eco- 
 nomic labor was left to some one else. It was, of course, 
 advisable for the capitalist to exercise a certain amount 
 of supervision and care in the matter; and even today, 
 a man who invests his fortune in stocks is not alive to 
 his interests if he pays no attention whatever to the 
 business, and does not at least take part in the annual 
 meeting, or in some other way acquaint himself with 
 the manner in which the business is carried on. 
 
 6. This necessity of combining labor and care with 
 capital, in order to be able to draw income from it, is 
 characteristic of certain periods. With a people that 
 has to be trained to regular occupation, it helps to develop 
 the inclination to labor, and prevents the individual from 
 being overwhelmed by the tide of profit, and working 
 only until he can retire and live on the interest of his 
 capital. This is all changed as soon as the acquisitive 
 instinct is so far developed that even the capitalist 
 wants to have more and more, and seeks to heap up 
 treasures. However much Stoic philosophy may despise 
 
174 THE LAW OF PROPERTY [Ch.VII 
 
 such a course, however strongly it may be represented 
 to the individual, that he will achieve more by moderat- 
 ing his desire for acquisition, the striving for gain will 
 still continue, and the ambition to outdo someone else 
 will rule. The result will be, perhaps, feverish haste 
 and rush, but it will also be an impulse to use the earth's 
 forces in all directions, and to obtain more and more 
 mastery over nature. The mastery of nature is the 
 source of acquisition; for nature is the goddess who 
 pours the fruits of industry into our laps. 
 
 7. At this point, the exchange of capital becomes of 
 the greatest importance; because now the first concern 
 is that capital should reach the person who can do the 
 most with it, and this exchange of capital presupposes, of 
 course, the charging of interest; for, whoever dispenses 
 with money, only to receive it back again after a time, 
 will find this no profitable undertaking. Philanthropy 
 may indeed lead to this, but philanthropy is generally a 
 defective spring, not to be compared to the tremendous 
 driving power of egoism; hence, everything that pro- 
 motes healthy egoism must be recognized to this extent 
 as also promotive of culture, and this includes the 
 charging of interest. Therefore, among all industrial 
 peoples, it has proved necessary to allow the taking of 
 interest; and this interdiction of interest was either 
 directly violated, or circumvented, in every possible 
 way; it had been outlived and could no longer exist. 
 
 One other point of view contributed to the abolition 
 of the interest prohibition. The speculative assertion 
 that money was unfruitful was met by the statement, 
 that when a man has to do without his capital for a 
 time he suffers damage; hence, it is only just that he 
 should receive compensation. So it followed, that even 
 though interest was unjustified from the borrower's 
 point of view, it was yet justified from the lender's 
 
§ 16 ] BARTER 175 
 
 standpoint ; for he cannot be required to do without his 
 money, and without compensation renounce the profits 
 that it might bring him. Thus, even the Canonists have 
 long recognized, at least conditionally, the admissi- 
 bility of interest; and, today, there is no longer any 
 doubt about it, even in ecclesiastical circles. 
 
 8. In the lives of nations, a system frequently develops 
 according to which legal rates of interest are established. 
 This is not an isolated phenomenon; in a similar way, 
 certain rates are determined for the purchase of provi- 
 sions, for contracts of service, and other things. The 
 idea that underlies all this is, that when commerce does 
 not regulate itself, it must be regulated by definite 
 rules; so that no one can take advantage of another's 
 necessitous condition, need of provisions, or of employ- 
 ment, and thus introduce needless contingencies into 
 economic life. It is the same as regards money ; for, it was 
 long before competition among those who granted credit 
 forced the price of credit down to a just basis. It was 
 not until then that a certain average current interest 
 arose, which of itself became a standard, and helped 
 would-be borrowers in acute situations and difficulties. 
 
 Such conditions in fact lasted very long; hence it is 
 comprehensible that the establishment of a rate of 
 interest became widespread and has continued for cen- 
 turies. Nor are we concerned here with the absurdities 
 that have prevailed, or periods of economic ignorance, 
 but with definite conditions of human culture through 
 which the nations had to pass, and whose peculiar needs 
 required peculiar legal forms. 
 
 3. Commerce in Risks 
 
 1. It was a stroke of genius in Germanic law to pro- 
 vide for a commerce in risks, to treat dangers as objects 
 to be dealt with in business. The risk that one man bears 
 
176 THE LAW OF PROPERTY [Ch.VII 
 
 can be taken over by another who receives something in 
 return. That in itself would be merely an ordinary 
 barter transaction; but the ingenious treatment of the 
 matter consists in this, that risks in the mass are entirely 
 different from an isolated risk assumed by an indi- 
 vidual. The individual has to bear in mind, that the 
 catastrophe, if it takes place, means his utter ruin. In 
 reckoning with masses, however, the risk is a balanced 
 one; because only one or another of many dangers 
 regularly occurs ; so that whoever takes upon himself the 
 risks of mass commerce can be fairly sure that he will 
 have to meet only a limited percentage of them. Now, 
 all the individuals who transfer their risks to him will 
 be prepared to pay an appropriate equivalent; and in 
 most cases this equivalent will be pure gain to the man 
 who insures, and only in a few cases will it be necessary 
 for him to pay. The consequence is, that for a rela- 
 tively limited performance, he is able to undertake all 
 these insurances. In other words, the fact that of all 
 risks only a limited percentage lead to misfortunes, 
 thus benefits the individual; whereas, otherwise, this 
 principle would be applicable only in mass commerce. 
 The whole idea of insurance has made a tremendous 
 advance in our day, and it is one of the cornerstones of 
 modern culture; for insurance lends stability to all 
 things; if not to their existence, still to their value, 
 which they would otherwise completely lack. The 
 result will naturally be greater financial steadiness, 
 greater certainty in speculation, healthier conditions 
 generally, and the possibility of devoting one's self 
 entirely to the aims and purposes of humanity. 
 
 2. A magnificent further development of the idea 
 has made it possible to include also death risks, with 
 all that that involves, to provide for bereaved relatives, 
 to keep money productive that would otherwise be tied 
 
§ 16 ] BARTER 177 
 
 up for the family's future benefit, and thus to make 
 family life more stable and secure. We now have, more- 
 over, an abundance of accident and liability insurance 
 enterprises which make it possible to endure the dangers 
 and hazards of modem life, and to take upon one's self 
 the liability for third persons and to compensate in- 
 juries inflicted by those in our service who would not 
 themselves be able to make the damage good. 
 
 4. Commerce in Service 
 
 1. In primitive times, only service by slaves and 
 trade in slaves were known ; the idea that service might 
 be performed by free men was remote. Probably the 
 fluctuating and varying needs of agriculture first led 
 to its introduction. Where only intermittent, quick, 
 and temporary service is needed, the idea first arises 
 that it is possible for a man to render service without 
 losing his liberty. 
 
 2. The service agreement, that is, the agreement of one 
 free man with another free man to perform certain work, 
 or to deliver the result of certain labor for compensation, 
 belongs to a later period, in which the dignity of labor 
 was recognized, and the workman was not regarded 
 merely as a physical machine, but as a being filled with 
 human aims and serving the interests of civilization. 
 This service agreement has had a great history in the 
 evolution of culture; and its function is especially to 
 raise and hallow labor, and in all respects to make the 
 position of the workman a dignified one. Accordingly, 
 the employer is obliged to see that the workman is 
 spared, as far as possible, all danger to life and limb, 
 health and honor, and the workman has certain fixed 
 rights that cannot be infringed. Hence, the full measure 
 of liberty to make agreements is not admissible, for the 
 reasons given on page 175. Especially, it must be made 
 
178 THE LAW OF PROPERTY [Ch.vii 
 
 possible for the workman to sever the relation when- 
 ever circumstances arise which make it impossible for 
 him to continue his service without detriment to his 
 honor and his character as a free man. 
 
 3. Still other factors enter into the matter: 
 
 (a) Thus, in associative service relations, when a 
 larger number of workmen are employed in the same 
 way (in factories and other places) ; for there the work- 
 men must be granted a certain equality of position; 
 wherefore a certain order must be established, which 
 applies equally to one and all (Arbeitsordnung) . 
 
 (b) Just under such conditions, it is advisable to 
 provide for institutions that promote the welfare of the 
 workmen, and form a sort of associative bond among 
 them (sick benefit societies, pension associations, etc.). 
 A fuller exposition of this point belongs to industrial 
 law; the latter forms a good portion of cultural law 
 which was first cultivated in England in the eighteenth 
 and nineteenth centuries, and from there spread into 
 other countries. New life is infused into the service 
 relation by associations of workmen, which leads to 
 their confronting capital as a solid power. They are 
 thus no longer economically the weaker, and, in offering 
 their services, are able themselves to make conditions. 
 It also leads to the co-operative labor contract, to the 
 establishment of tariffs that are binding for the service 
 agreement, and to the treatment of individual work- 
 men as a part of the whole. 
 
 This is the step that we have just mounted. 
 
 4. If in this way the workman attains a better posi- 
 tion, so, too, on the other hand, the vital strength and 
 efficiency of the working classes are raised, and this is a 
 cultural interest of the first rank. A people must be 
 healthy inorder to remain permanently capable. 
 
S 17 ] PARTNERSHIP 179 
 
 SECOND SUB-DIVISION 
 
 SECTION XVII 
 PARTNERSHIP 
 
 1. A partnership consists of a number of persons 
 who combine capital with capital, capital with labor, 
 or labor with labor, for the accomplishment of common 
 ends. The operations of man's social nature are made 
 apparent here; for what the individual cannot perform, 
 combined forces can accomplish. This is true not only 
 in such a way that the combination of five fortunes 
 accomplishes five times as much as one could, but skil- 
 ful combination also increases the significance of each 
 contribution progressively; so that the whole is, for 
 instance, not five times, but five times five as effective 
 as one. This is especially the case if work is added to 
 wealth ; for by the skilful handling of money, especially 
 by efficient management, forces can be drawn from the 
 whole that otherwise would remain forever dormant. 
 Just as in chemistry the combination of two elements 
 is not to be regarded merely as a sum, but as producing 
 something quite new, so in economic life the combina- 
 tion of capital and labor may create something entirely 
 new and unsuspected. The combination of capital and 
 labor may, indeed, be accomplished in another way, 
 especially by service agreements, whereby the workman 
 subordinates himself to the capitalist; but, if he has a 
 right, not only to a certain wage, but is himself con- 
 cerned in the success of the venture and has a voice 
 in its management, his attitude toward it will, of course, 
 be entirely different, and he will do his part with much 
 greater intellectual activity. 
 
180 THE LAW OF PROPERTY [Ch.VII 
 
 All this shows the tremendous strength of the part- 
 nership. Its weakness lies in this, that many minds 
 work together for one end; and, as they represent 
 different views of life, different temperaments, different 
 kinds of education, the result is often a divided endea- 
 vor; for whenever decisions are made, one may decide 
 in one way, one in another, and this may lead to a 
 mischievous conclusion since a partnership is based on 
 unified action. 
 
 2. Whether, and to what extent, these obstacles are 
 overcome depends mainly on the character of the people ; 
 hence, some nations are better fitted for the partnership 
 than are others. Especially is it necessary that the 
 individuals concerned should be able to renounce their 
 own desires, and their own will, for the good of the whole, 
 and that they should be ready to make such a sacri- 
 fice, even when they are convinced of the correctness 
 of their view, so that the partnership may prosper. A 
 second point that comes under consideration is loyalty 
 and honesty. The partnership offers endless oppor- 
 tunities to a man to work for his own advantage at the 
 expense of his associates. In this respect, too, national 
 character is a main factor ; and partnerships will thrive 
 best in countries where loyalty and honesty are strongly 
 developed in the people. The achievements of a nation 
 do not depend only on its intellectual gifts, but, also, 
 on qualities of character, and, especially, on those that 
 make it best fitted for co-operation. 
 
 3. Fortunately, in earlier times, special historical 
 conditions helped to overcome the weakness of the 
 partnership as an institution. It was formerly an out- 
 growth of the family and the position that the head of 
 the family enjoyed, his authority, and the esteem in 
 which he was held, quite apfirt from other social reasons, 
 made it natural that others should follow him, and 
 
517] PARTNERSHIP 181 
 
 bow to his will. The religious element was also of 
 moment; for if a certain member were believed to pos- 
 sess supernatural powers, his decisions, of course, took 
 on an added importance. 
 
 On the other hand, much also can be done by educa- 
 tion to promote the growth of those virtues that are 
 necessary in social life. Especially is it possible to teach 
 that small things must be sacrified for great acquisitions; 
 and that it is a mistake obstinately to insist on one's 
 own way, when important interests are in question. And 
 as regards loyalty and honesty, national education can 
 and should do a great deal; for in co-operative life, 
 honesty is a virtue on which the institution of partnership 
 is based. The law, of course, can aid in overcoming the 
 weaknesses of the institution: it can be provided, that 
 in cases of disagreement, a third person shall be heard, 
 and that whoever is guilty of fraud in co-operative life 
 shall become an object of public contempt. 
 
 4. The promotion of partnership activities is among 
 the first duties of the law, for the partnership develops 
 a number of hidden national forces, and the tremendous 
 financial power that the partnership attains may lead 
 to its excelling everything else in the market of the world 
 and tipping the scales when highly important economic 
 enterprises are in question. 
 
 The law, in this connection, must aim especially 
 at a proper valuation of labor; for the chief significance 
 of the partnership is that it adds labor to capital, thus 
 forming a combination that is able to create what capi- 
 tal alone would find impossible. On the other hand, 
 the law, must grant the greatest possible freedom in the 
 formation of partnerships; for the conditions of the 
 agreement must be adapted to individual cases, and 
 must conform to the presuppositions of individual life. 
 Any law that prescribes, once for all, in what manner 
 
182 THE LAW OF PROPERTY [Ch.VII 
 
 the members of the partnership must participate, and 
 deprives tljem of the possibility of determining other- 
 wise, paralyzes the nerve centre of partnership life, and 
 makes many important arrangera^ents impossible. 
 
 In addition, the law must not allow these associations 
 to be formed for too long a time; for much that, at 
 'first sight, appears to be admissible, later turns out to 
 be detrimental, or quite impossible. The characters of 
 the members often do not become better adapted to 
 one another with time, but rather, after a period of 
 experiment, the members lose either the ability or the 
 inclination to adapt themselves, so that discord is later 
 bound to appear. It may also happen that, on certain 
 occasions, opposing passions and conflicts are so violent 
 that the mutual regard of the members ceases once for 
 all. Hence, unless the legal order desires to limit the 
 existence of the partnership to a short time, it must 
 grant the possibility of giving notice of withdrawal, 
 even in the case of partnerships established for a defin- 
 ite time — that is, of giving notice on justifiable grounds 
 which are judged from case to case. 
 
 5. A new idea enters, when it becomes possible for 
 a member to sell his share of the business. This, it is 
 true, appears to be at variance with the idea of the 
 partnership which counts, more or less, on the personality 
 of the members. Yet, there may be associations that 
 put such a value on capital, and at the same time in- 
 clude so many persons, that the changing of several 
 members scarcely comes under consideration. On the 
 other hand, this change is important, in that it makes it 
 possible for some one who wishes to withdraw, to trans- 
 fer his share to some one who wishes to enter, instead 
 of bringing about a dissolution of the whole. If such 
 changes were frequent, and involved large numbers 
 of members, they might interfere with the steady 
 
1 17 ] PARTNERSHIP 183 
 
 development of the association; and, whereas, at 
 first it may have been composed entirely of optimists, 
 it may end in a sullen pessimism. In order to avoid 
 this result, the effective method is often adopted of 
 putting the management into the hands of an able man, 
 or men, and allowing him certain independence of action. 
 The management thus remains the same even if the 
 members change, and it is only necessary for them 
 to express their views and desires at the regular or 
 annual meetings. It is possible for them sharply to 
 oppose the management only if they are able to set 
 up a different practical leadership, but this is usually 
 difficult. Hence, in spite of the changes in membership, 
 the equilibrium of the association is generally main- 
 tained. 
 
 The model example of this kind of association is the 
 stock company, an institution whose rise throws every- 
 thing else into the shade, and with whose financial power 
 the world, one might say, can be conquered. 
 
 Of course, there are dangers connected with this kind 
 of company too, and these are especially that the stocks 
 may be improperly used for honest or dishonest specula- 
 tion, or that the management may be inefficient or dis- 
 honorable. In this regard, it is the duty of the law to 
 support, as far as possible, the form of the company, on 
 the one side, and, on the other, to take precautionary 
 measures to prevent abuses; for instance, by making 
 the incorporators responsible, by public supervision, etc. 
 
184 THE LAW OF PROPERTY [Ch.VII 
 
 THIRD SUB-DIVISION 
 
 SECTION XVIII 
 
 GIFTS 
 
 1. Gifts, in the sense in which we understand the 
 word, were primitively unknown to mankind. The par- 
 ticipation of third persons in individual goods does 
 indeed occur even in the lowest stages of culture, and 
 hospitality, in particular, is a very ancient institution.' 
 But this was not based on the ethical idea of giving; it 
 was merely a consequence of collective conditions and 
 the idea of communal life. Men did not grasp the con- 
 cept of individual ownership as in our day; hence, the 
 bestowal of goods on others cannot be interpreted as a 
 giving. The goods belonged to all, and if they were 
 more accessible to one, and others participated in them 
 only in a secondary way, yet this was an actual relation 
 that was certainly not understood as meaning that the 
 others were entirely excluded. Hence, the bestowal of 
 goods upon a third person could not be regarded as a 
 breaking off of the rights of the owner. 
 
 2. Gifts do indeed occur among primitive tribes, but 
 they have an entirely different meaning. They are 
 based on the desire for change, and if a man gives some- 
 thing, he merely declares in this way that he wants some- 
 thing else from the recipient. This is not carried out in 
 the definite form of barter, but only in the certain expec- 
 tation of a return gift; though the expectation is fairly 
 well understood, and even though the article desired is 
 indicated. Hence, giving among primitive peoples is a 
 
 • And not an invention of the Phoenicians as Ihering assumed — a posi- 
 tively fantastic doctrine showing complete ignorance of primitive peoples. 
 
§ 18 ] GIFTS 185 
 
 very suggestive performance, and the recipient of the 
 gift is not in an especially happy position; he is forced 
 into a situation in which he must choose one of two 
 alternatives. If he does not make a gift in return, the 
 original giver finally demands his gift back again. 
 Therefore we find the idea current among all peoples, 
 that a gift may be recalled, and that the right of recall 
 does not expire until some return has been made, — an 
 idea that was later circumvented by giving in return 
 some insignificant article such as an old hat, glove, or 
 other worn-out article of clothing. This institution is 
 most pronounced in the code of the Longobards, where 
 the return gift is called "Laungild." But also among 
 other peoples the same thing is found. 
 
 3. The return gift is often of an intangible nature, 
 and the original gift is not made for the purpose of obtain- 
 ing some object in return, but in order to procure the 
 recipient's services or favor. Thus, eventually, giving 
 comes to be recognized as a one-sided act. This is 
 shown especially in gifts made to the Divinity, to the 
 temple; for, in this case, the "Laungild" consists of the 
 favorable attitude of heaven, and in all the good that is 
 expected from above. Thus, the leap is taken to the 
 ethical basis; for if only the other's attitude is taken 
 into consideration, and the giver finds his satisfaction in 
 this, then the moral element is present. The desire is 
 there to do good to another, to aid him, to ameliorate 
 his condition; for these are the things that arouse his 
 gratitude, and thus the matter passes from the ground of 
 egoism to that of altruism. 
 
 4. With this the recall of the gift ceases ; the ethical 
 act requires an immediate sacrifice for the other person. 
 In many systems of law, however, the idea appears that 
 unethical feelings on the part of the recipient of the 
 gift entitle the donor to procure satisfaction in some 
 
186 THE LAW OF PROPERTY [Ch.VII 
 
 way, and this may consist in recalling the gift. But this 
 recall must not be confounded with the one that existed 
 in earlier times. The earlier recall was based on the 
 unstable nature of the donation, and on the requirement 
 of a return; while the later recall rests on the unethical 
 feelings of the recipient of the gift. It depends not on 
 the fact that the spirit in which the thing was given was 
 imperfect, but that the recipient transgresses against 
 the amenities of life. Therefore, the claim is one for satis- 
 faction ; and in this connection, the principle has further 
 been advanced, that if the donor becomes poor, and the 
 former recipient of his gift does not aid him, he may ask, 
 if not the return of the gift, at least a recompense, in as 
 far as it is necessary in order to aid him. 
 
 5. Cases are not rare in which the donor is so gen- 
 erous that he no longer handles his wealth as individual 
 property, but more as if it were common property. This 
 is simply an atavistic relapse into those primitive times 
 when individual ownership was not recognized. It is 
 a type of extravagance, and indeed one of the most 
 pronounced kinds. Other kinds are the outgrowth of 
 an absurdly over-developed idea of personality, or they 
 are based on ideas of abstinence and self-sacrifice, which 
 may be of highly ethical significance, but are always 
 objectionable, when they stand in the way of other 
 ethical duties. Still another kind of extravagance is 
 seen when a man of weak will falls under the influence of 
 others, and, becoming as putty in their hands, squanders 
 his own possessions. The law has been constrained to 
 proceed against this exaggerated generosity in different 
 ways. This may be done by interference with the per- 
 son and restriction of his capacity to transact business. 
 It may be done by the opposition of the family [restric- 
 tion regarding the compulsory portion] (Pflichtteils- 
 heschrankung) ; and by the establishment of certain 
 
§ 19 ] COMPENSATION 187 
 
 formalities that regulate gifts and make the act of 
 giving more difficult, so that the will of the donor is put 
 to the test, and that the donation can only be made with 
 perseverance. 
 
 FOURTH SUB-DIVISION 
 
 SECTION XIX 
 COMPENSATION 
 
 1. We have already spoken (on p. 89) of the fact 
 that it is often necessary to adjust the relations of life, 
 so that they may be freed from the element of chance, 
 and brought into conformity with the relations favored 
 by the law. The details of this point belong to civil law. 
 
 2. Compensation (Ausgleichung) for illegal acts first 
 comes under consideration; as whoever, by acting 
 wrongfully has brought about a misadjustment in what 
 has been settled by the usages of the law, is bound to 
 remove this discord, and to re-establish the proper 
 equilibrium. This subject has a connection with the 
 criminal law. 
 
 3. We are concerned here with liability for acts of 
 others, and especially with liability for damage inflicted 
 by animals. 
 
 The idea that if a man, in pursuance of his occupation, 
 has another person to help him, he must in some respects 
 be answerable for this person, is very old indeed, and 
 was originally rooted in family relations. A helper 
 became a member of the family, or, at least, was included 
 in the family community; hence the head of the family, 
 according to ancient rules, was responsible for him. 
 
188 THE LAW OF PROPERTY [CH.VII 
 
 When persons came to employ others who were not 
 included in the household, it was but natural that the 
 idea of responsibility for such persons also should arise. 
 The liability may either be absolute, or the employer may 
 be free from liability, if he has chosen his servants with 
 care and watched over them properly. These are the 
 two poles in the treatment of the matter; for the further 
 view, that the master is in no way responsible for his 
 servants, is so unpractical and anti-social, that it need 
 not be more than mentioned. Our law inclines to the 
 second system, but in certain cases has adopted the 
 first. 
 
 4. Of special importance, however, is the liability 
 for animals and slaves; this has played a great part in 
 the history of the law and still requires detailed presen- 
 tation. 
 
 5. The liability for damage inflicted by animals grew 
 out of the idea that animals are reasonable beings, respon- 
 sible for their misdoings, and hence deserving of punish- 
 ment and correction. All peoples originally followed 
 this principle — very naturally; for the sharply defined 
 difference that our cultural life makes between men and 
 animals was unknown to primitive peoples. They put 
 themselves on the same plane as animals, and regarded 
 the latter as equal to themselves. Therefore, we find 
 animals being sentenced and punished, etc.; and, there- 
 fore, if A 's beast did B an injury, B claimed it in order 
 to execute punishment upon it. Instead of doing 
 so, however, he might make use of the animal to 
 work, and this course naturally appeared the more 
 reasonable as soon as his desire for revenge had some- 
 what subsided. 
 
 6. Of course, the original owner of the beast did not 
 always care to be deprived of it in this way: the damage 
 done did not perhaps amount to as much as a third of 
 
§ 19 1 COMPENSATION 189 
 
 the animal's value, hence the principle was naturally 
 evolved, that if the owner of the animal took the lia- 
 bility upon himself, the animal need not be given away 
 nor punishment inflicted upon it. -This must have 
 seemed the more acceptable, because it was quite gen- 
 eral for one man to take upon himself another's lia- 
 bility, and therefore no objection would arise against 
 redemption of an animal by a sum of money. 
 
 7. It is comprehensible that the principle was thus 
 formulated, that the owner must either deliver the 
 animal up or be liable for the damage. This was a 
 rational weakening of the passions of revenge, that were 
 awakened by the activity of the animal ; and thus, also, 
 better and more sensible results were obtained, espe- 
 cially, economic results: the animal was spared, and the 
 owner was not deprived of its use. The latter fact was 
 of added value, because, as a rule, the animal was used 
 by him in carrying on his occupation, and served his 
 purposes better than those of another. 
 
 Among some peoples, this treatment was modified 
 in the following way: the owner of the animal was held 
 responsible only for a part of the damage; the idea 
 being, that as animals are only half reasonable, it is 
 proper to make the owner responsible for only half of 
 the damage. This was the case in Jewish law. 
 
 8. But all these views were applicable, in the long 
 run, only to cases in which the animal acted with special 
 malice; for, if it naerely grazed where it found pasture, 
 it could scarcely be said to have acted with evil intent; 
 and even if it were commanded not to strike against its 
 "neighbor," to bite him, or do him any other injury, 
 it could not be supposed that an animal could distin- 
 guish between property relations, and that it was due 
 to malevolence, if it grazed in another field than that of 
 its owner. 
 
190 THE LAW OF PROPERTY [Ch.vII 
 
 This led to another principle : in such cases, the animal 
 could not be held answerable, but the keeper, or herder, 
 or owner, was made responsible ; because it was said, that 
 he should have looked after the animals better and in this 
 way liability for insufficient care and keeping originated. 
 This, of course, introduced an entirely new idea ; for here, 
 not the animal, but the keeper was directly liable for his 
 own act, because he had not exercised the necesary care 
 with animals that might in this way be a menace to the 
 property of another. 
 
 9. In time, of course, the idea that the animal itself 
 was liable, necessarily disappeared, when a fundamental 
 distinction between men and animals was made, and 
 it was recognized that only man possessed reason and 
 was responsible. It is culture that has made this sharp 
 dividing line between men and animals, a process that 
 was unheard of in primitive times, and, even now, is not 
 easily understood by the lower classes. From then on, 
 two methods of treatment were possible. Either the 
 owner was held accountable only in case of offense, 
 in accordance with the last mentioned principles; or 
 he was held liable for the animal in any case on the 
 ground that whoever keeps such a dangerous creature 
 must be responsible for it. All justification for requir- 
 ing the animal to be delivered up was thus removed. 
 The practice still existed for some time, however, not 
 on the grounds of reason, but because of historical 
 custom, and in the effort somewhat to moderate the 
 owner's liability. 
 
 10. The general method of treatment is to make the 
 owner entirely liable, assuming, of course, that the 
 animal was moved by its semi-intelligence, and did 
 not do the damage under the guidance of any person; 
 in which case, obviously, it is to be regarded merely 
 as the tool of the person liable. This liability may be 
 
§20] PROPERTY AS A WHOLE 191 
 
 limited in certain cases ; as, for instance, in the interests 
 of industry and agriculture. 
 
 11. What applies to animals, applies also to slaves: 
 also in regard to the latter the principle existed, that 
 if a slave committed a wrong he must pay the penalty, 
 unless, indeed, his owner made himself liable for him. 
 Strangely enough, among some peoples, this idea aided 
 in ameliorating slavery, by making it possible for a 
 slave to change his master when he liked. It was only 
 necessary for him to do another man some injury, where- 
 upon the latter demanded that the slave be delivered 
 over to him. Naturally, this might be arranged be- 
 tween the slave and the new master; and it finally led 
 so far, that by any symbolic injury, the slave could pro- 
 cure another man the right to take him away from his 
 master, and claim him for himself (Bondo-Recht). Thus 
 slavery was mitigated, and it was greatly to the interest 
 of slave-owners to treat their slaves well; so that the 
 latter should not make make use of the above expedient. 
 This is another instance where the unexpected use of 
 a legal institution led to a remarkable advance in cul- 
 ture. 
 
 SECTION XX 
 
 III. PROPERTY AS A WHOLE 
 
 1. General Remarks 
 
 1. The totality of a person's proprietary powers 
 constitute his property. In numerous cases, the totality 
 of these relations experiences a common fate and it is 
 therefore of interest to unify the totality. 
 
 2. This unification does not mean that the totality 
 represents a different legal object from its constituent 
 parts (p. 70 (4) ,) but it does lead to this, that : 
 
192 THE LAW OF PROPERTY [Ch.VII 
 
 (a) Certain legal acts and legal destinies include 
 all the proprietary objects ; 
 
 (&) Debts are encumbrances on the property, and 
 must be carried by him who takes over the property; 
 
 (c) The principle of substitution holds in accordance 
 with which if an individual proprietary object is ex- 
 changed for another, the other takes the place of the 
 first and becomes part of the property, (p. 71 (5c) .) 
 
 3. A closer consideration of this matter belongs to 
 civil law, and need not concern us here. In examining 
 the subject philosophically, it need only be said that the 
 most important instance in which property appears 
 as a totality is in the law of inheritance. And to this 
 we will now turn our attention. 
 
 2. Inheritance 
 (a) In General. 
 
 1. Inheritance is based on the idea of the contin- 
 uity of the individual property after the death of its 
 owner, through a person who is connected with this 
 owner in a definite way, either by reason of family or 
 a similar relationship, or by reason of a legally effec- 
 tive testamentary provision that creates a new rela- 
 tionship. 
 
 2. The right of inheritance, therefore, does not exist 
 in any of the following cases: 
 
 (a) If after the owner's death the property reverts 
 to the community. Hence when, in Rome, property 
 fell to the gentiles, or when as today, in the absence of 
 heirs, it falls to the fiscus, it is improper to designate 
 this an inheritance. It is merely called inheritance, 
 because the technical juristic principles governing in- 
 heritance law have been extended to include such cases. 
 
 (b) Neither is it inheritance if the proprietary rights 
 of the deceased cease, and another, unrelated to him. 
 
§20] PROPERTY AS A WHOLE 193 
 
 acquires the property; for instance, by new investiture 
 ( Neuverleihung) . 
 
 (c) It is not inheritance if a man is a joint owner, 
 and on his death his share either is merged in others, 
 or another takes his place as a joint owner, but not by 
 virtue of the dead person's disposition of his property, 
 but owing to the special principles governing rights 
 held jointly. 
 
 (d) It is not inheritance if the property of a juristic 
 person, after the dissolution of the juristic person, 
 falls to an individual, or another juristic person; 
 although this, too, is often treated technically as an 
 inheritance. 
 
 3. As inheritance rests, above all, on family rela- 
 tions, the principles of family organization are mainly 
 determinative for the inheritance, and this in two 
 respects: first according to the kind of organization and 
 then according to the degree of exclusiveness. If we 
 ask who stood nearest to the deceased person, the 
 first thing to be considered is whether the family organ- 
 ization conforms to matriarchy or patriarchy (p. 105) ; 
 in the one case, the nephew, in the other the sons, will 
 -succeed. But, also, in another respect, the family 
 organization must be considered. If each family is 
 distinct in itself, and sharply separated from the other, 
 so that, possibly, they are at odds with each other, then, 
 as was emphasized on p. 107, the individual must belong 
 exclusively to one family or the other, since one could 
 not be, at the same time, a member of both the families 
 A and B. In this case, the succession conforming to 
 matriarchy will be exclusively matriarchal, and that 
 conforming to patriarchy exclusively patriarchal; and 
 in the latter case, the child will be able to inherit only 
 from the father and his family, not from the mother and 
 her relatives. 
 
194 THE LAW OF PROPERTY [Ch.vII 
 
 Not until families are less sharply divided from one 
 another, and are merged in the unity of the State to which 
 they leave the guiding functions of culture, and when 
 there can no longer be any question of struggles between 
 families, does the time come when a person can belong 
 to several families as regards the right of inheritance, 
 (p. 106.) 
 
 The whole development of the law of inheritance 
 among modem peoples is filled with this idea; and 
 Roman law, in particular, labored for five centuries 
 before it finally forsook the agnate right of inheritance, 
 that is to say, the right to inherit exclusively from the 
 paternal family, and established the right to inherit 
 from both the paternal and the maternal families, which 
 is called the cognate right of succession. The Germanic 
 law also developed in the same way; largely, it is true, 
 under the influence of Roman law. 
 
 4. The position of women, as regards the law of 
 inheritance, is also closely connected with the family 
 system; as appears, for instance, in the treatment of 
 daughters. Patriarchy does not indeed prevent both 
 sons and daughters from inheriting from the father, but 
 the daughter's right of inheritance leads to an unde- 
 sirable result ; for if the daughter marries, her property, 
 according to the principles of patriarchy, is trans- 
 ferred to her husband, and the property of her family 
 is thus considerably reduced. If the daughter of family 
 A marries into family B, her possessions will fall to 
 family B, and thus be lost to family A. This idea of 
 itself led to the result that the daughter was deprived 
 of her heritage and restricted to her dowry. 
 
 From this standpoint, there could, of course, be no 
 question of a woman's children's inheriting from her, 
 as by her marriage she herself had been deprived of 
 her property; and, if a widow, she became dependent 
 on annuities and usufructuary rights 
 
§20] PROPERTY AS A WHOLE 195 
 
 All this was changed when the principles of patriarchy 
 became weakened and a woman retained her prop- 
 erty in spite of her marriage. No logical reason then 
 any longer existed for excluding daughters from the 
 right of inheritance, although, on other grounds, many 
 restrictions were laid upon their inheritance rights. 
 It followed, that the children of a mother who, as a 
 wife or widow, possessed property, would inherit from 
 her; for it was no longer in accordance with the prin- 
 ciples of family organization that a woman's brothers 
 or more distant paternal relatives should inherit from 
 her to the exclusion of her own children. This gave 
 rise to the right of children to inherit from their mother, 
 which can be traced in various forms in the laws of 
 nations that were governed by patriarchy, as, for in- 
 stance, the Romans and Jews. 
 
 5. With this development, a characteristic change 
 took place in family life. Whereas, in the time of family 
 property, the various branches of the family lived, 
 worked, and earned together, the different brothers 
 and their branches of the family now struck out for 
 themselves. This brought about a significant new for- 
 mation. 
 
 Formerly, if one of the brothers died before his parents 
 and left children, these children inherited nothing; the 
 remaining brothers inherited everything, and were, of 
 course, obliged to care for their dead brother's children 
 36 for their own. It would have been considered mon- 
 strous for these children to have contended against 
 their uncles and claimed anything for themselves. But, 
 when once the fraternal branches of the family were 
 separated, so that even during their lifetime, the brothers 
 with their children had separate property, then the oppo- 
 site course must have appeared monstrous; for it is 
 unnatural, that if the head of the family dies, and leaves 
 
196 THE LAW OF PROPERTY [Ch.VII 
 
 descendants, the main line shall suddenly be erased. 
 If the other bearers of the family name, that is to say, 
 the brothers, are still alive, it may indeed long appear 
 that because of their near relationship to the head of 
 the family, they have superior rights in his property. 
 But this idea soon conflicts with another, that the chil- 
 dren of a dead son stand quite as near to the head of 
 the family; in fact, that the relationship of grandchil- 
 dren to their grandfather is usually an especially inti- 
 mate one. 
 
 Thus originates what has been called the right of 
 representation, which in reality is nothing but the 
 principle of trunk distribution (Stammteilung) , as I 
 termed it thirty years ago. The maintenance of the 
 opposite principle in some systems of law, among others 
 in that of Islam, is merely a defect in development, and 
 shows that these systems have, in this respect, re- 
 mained arrested. 
 
 The same applies when there are no sons living, but 
 only grandsons; in this case, the idea of treating all 
 the grandsons equally, without regard to the number 
 of family branches and the number of children in each 
 line, is also a defect which stands in open contradic- 
 tion to the usual separation of the lines; for which 
 reason, all the nations of the European continent have 
 accepted the division into family lines. 
 
 (b) Indivisible and Divisible Inheritance (EinheitS' 
 und Mehrheitserhrecht). 
 
 1. The struggle between individualism and the 
 social tendencies of humanity is also seen in the law of 
 inheritance. On the one hand, the individual de- 
 mands consideration, and, if there are several persons 
 of equal position, he demands the same measure and 
 amount of consideration as they receive. On the other 
 
§20] PROPERTY AS A WHOLE 197 
 
 hand, social life often demands that a deviation be 
 made, and that one or more individuals be forced into 
 the background. 
 
 This struggle is especially pronounced in the treat- 
 ment of children. That for a long time women were 
 less favored than men, that is, the daughters less than 
 the sons, was due to the special law governing the sexes, 
 which has already been explained, (p. 194.) Yet, even 
 among persons of the same sex, although the individual 
 urges equal treatment, the social aspects of the family 
 and of property frequently require another course. 
 
 2. The social mission of the family often demands, in 
 particular, that the estate remain intact, and not be 
 divided among several children. This may be the case 
 for various reasons ; especially if a division of the estate 
 would mean that its power would be destroyed or 
 weakened; the portions into which it would be separated 
 not having the same economic significance as the unified 
 whole. Religious reasons often oppose such division, 
 when the estate is also dedicated to the gods and to 
 their service, and reUgious observances in the family are 
 to remain uniform. 
 
 3. This disagreement may be avoided if the estate 
 remains intact, and the children live together in unity; 
 so that the property of the head of the family belongs to 
 all the children and their descendants, while the fact 
 that its management remains in the hands of one per- 
 son does not prevent the various members of the family 
 from pursuing different interests. But, from what has 
 already been said, we have seen that it is not possible 
 for the family to continue in this kind of life permanently: 
 for not only do the interests of the different members 
 clash, but also their fundamental differences of character, 
 and this must necessarily break up the unity. (Com- 
 pare p. 47 (7).) 
 
198 THE LAW OF PROPERTY [Ch.VII 
 
 4. If the individual's claim to a division, and the 
 social claim to unity, of the estate, cannot be reconciled 
 in this way, one of the two claims is forced into the 
 background. And here, it is self-evident that the social 
 interest must come before the individual claim; for 
 under the stress of social decay, the individual also would 
 be ruined; whereas if social interests are maintained, 
 it is still always possible for the individual to make his 
 way, and find his proper course. This has led to vari- 
 ous solutions. The whole estate may go to only one 
 child as, for instance, in East Asia, in China, and Japan, 
 or at least one child may receive far the greater part of 
 it, and at the same time be obliged, more or less, to pro- 
 vide for the others. A more detailed discussion of the 
 subject lies within the province of legal history. It 
 need only be said here, that philosophically all these 
 institutions sustain the social endeavor to counter- 
 balance the exaggeration of individual activity. The 
 special question whether the oldest or the youngest 
 child, or one chosen by the family, or by the father him- 
 self, is to be the manager of the whole, cannot be gen- 
 erally solved, but must depend on the conditions of life, 
 and on national views and customs. It may be said, 
 however, that the right of the eldest would seem to be 
 the most natural and appropriate ; for the eldest son is 
 thus placed somewhat in the position of a parent, as re- 
 gards the younger children, and this gives him a certain 
 support. The right of the youngest son, on the con- 
 trary, can only be justified by certain peculiar family 
 conditions; as, for instance, if the older sons have left 
 the home, and the youngest devotes himself to the 
 care of his parents, and hence takes over their house 
 and property. The practice of permitting either the 
 family or the father to make the choice will lead to 
 favorable results only if the others have so much confi- 
 
§20] PROPERTY AS A WHOLE 199 
 
 dence in the one entitled to choose, and if the family 
 feeling is so strong, that all immediately submit to the 
 choice made, and also if their faithfulness to duty, and 
 to the welfare of the family, is unquestionable; so that 
 it need not be feared, that those with whom the choice 
 rests will allow themselves to be influenced by per- 
 sonal motives — a proceeding that would mean psychic 
 ruin and the decline of the family. With us such a right 
 of choice has therefore been generally excluded. 
 
 (c) Disposal of Property after Death. 
 
 1. The question whether it is proper to accord to the 
 holder of property the capacity to determine the fate of 
 the inheritance after his death has occupied the nations 
 much. The discussion of those particular conditions 
 that led to the introduction of the will belongs to the 
 history of the law. There it appears, that quite differ- 
 ent motives, which were partly religious, partly of a 
 family nature, and partly also connected with states- 
 manship, led to the granting of such a right of disposi- 
 tion in greater or less measure. 
 
 2. The legal philosophical significance of the will lies 
 in the increased importance of the individual, as opposed 
 to the family, and in the insistent claims of the members 
 of the family to the property left. The claims of the 
 family as regards the different portions of the property 
 are not always equally powerful; not seldom, a distinc- 
 tion is made between property which the owner has 
 inherited from his family, and property which he him- 
 self has acquired. The inherited property is regarded 
 as an indivisible portion of the family property; and 
 this view frequently brings the efforts of the individual 
 to naught. Of acquired property, on the other hand, 
 the individual has the free capacity of disposition, even 
 after death. Here, too, we see the conflict between 
 
200 THE LAW OF PROPERTY [Ch.V1I 
 
 individualism and sociality, and the question is whether 
 the welfare of society is to be expected from the triumph 
 of the one or of the other element. 
 
 3. The predominance of individualism to such an 
 extent that the holder of property has the power of 
 disposition corresponds to human development; for 
 it is promotive of culture, if property does not always 
 take a certain course, but may be devised by the owner 
 to certain purposes, and thus making it possible that 
 great undertakings of mankind may be considerably 
 advanced. This gains added significance from the fact 
 that it also increases the instinct of acquisition, and 
 causes a man to strive with all his might to obtain the 
 means of carrying out his will, even after death. In 
 this way, the possibility of disposing of property after 
 death is a powerful incentive ; it increases the individual's 
 devotion to his work and to his business life, and this, of 
 course, advances cultural life in a high degree. 
 
 4. The inheritance of property according to a fixed 
 system gives rise to grave questions, for it is simply a 
 chance if the property falls into the hands of those who 
 know how to appreciate and make proper use of it; 
 whereas, if the owner can dispose of it, he can choose 
 the persons who may be expected to turn it to the best 
 account. Moreover, the individual who acquires the 
 estate, will have a strong interest in choosing a fit suc- 
 cessor, and even though he may make mistakes, yet 
 his choice will generally be better than that of fate, or 
 rather, chance. 
 
 Other advantages are the following: 
 
 (o) That larger masses of property remain undivided, 
 and thus can be used for the advancement of economic, 
 scientific, or artistic purposes. 
 
 (b) It is possible that the estate may be taken entirely 
 out of the hands of incapable or unworthy heirs, and be 
 
520] PROPERTY AS A WHOLE 201 
 
 devised to those who will obtain the greatest benefit 
 from it; it can also be adapted to the most various 
 purposes. In this way it is more or less possible to 
 attain the ideal of placing the estate in the hands of 
 those who will use it most effectively. 
 
 This is the higher meaning of the right to dispose of 
 property by will, and this meaning must be borne in 
 mind in the legal effectuation and construction of 
 testamentary dispositions. 
 
 5. It must be admitted that there are also certain 
 disadvantages connected with the right of testamen- 
 tary disposition. The owner of the property will not 
 always be guided by the proper considerations; some- 
 times he will be subject more or less to improper influ- 
 ences, and, in fact, all the dangers of individualism will 
 here be pronounced ; for even the normal man vacillates 
 between individualistic cultural: endeavors and human 
 prejudices and passions. Yet, the greater weight cer- 
 tainly lies on the side of progressive and cultural en- 
 deavors ; hence the right of disposition of property after 
 death must be accepted as a cultural factor. 
 
 6. In this connection different important special 
 questions arise which have been solved in the most 
 various ways in the different national systems of the law ; 
 in themselves, they belong to the sphere of legal history, 
 but they have also certain legal philosophical aspects. 
 
 (a) There is the question of the revocability or irre- 
 vocability of the will. There are strong grounds against 
 irrevocability based on the contractual theory (inherit- 
 ance agreement), inasmuch as the individual thus 
 destroys his own power, and, we may say, digs his own 
 grave. All the reasons mentioned above speak for 
 revocability, especially the idea that the free power to 
 dispose intensifies the instinct of acquisition. Such a 
 restriction may paralyze the individual's industry and 
 
202 THE LAW OF PROPERTY [Ch.VII 
 
 instinct of acquisition, and thus considerably hinder 
 the work of culture. Not only for this reason, but also 
 on other grounds is revocability desirable ; many a man 
 will avoid making dispositions that bind him forever, 
 and deprive him of the capacity to change his will. 
 Consequently, he will continue to put off making his 
 will, with the idea that circumstances may change, and 
 that what is desirable today may prove to be unsuit- 
 able tomorrow. Thus, a variety of beneficial arrange- 
 ments will fail to be made; they will be put off from 
 day to day, until it is too late; while where there is a 
 will, the idea that it may be revoked affords mental 
 satisfaction to the testator. If, notwithstanding, the 
 present [German] civil code, in contrast to the wisdom 
 of the Roman law, has accorded wide recognition to the 
 contractual limitation of the will, it is partly because 
 certain important vital connections are involved ; above 
 all, the relations between husbands and wives, which 
 to a certain extent do not lie within the circle of general 
 consideration, and thus require special attention. The 
 whole institution of marriage, indeed, conflicts with the 
 legal principle that permits the individual to bind him- 
 self only temporarily: it appears to a certain extent as 
 an exception which is only justifiable on ethical and 
 social grounds. Inheritance contracts between husband 
 and wife, especially in connection with the marriage con- 
 tract, may here find their justification. Under other 
 pressing circumstances, too, it may be justifiable to go 
 beyond the fundamental rules of personal liberty; as, 
 for instance, if it is only possible for some one to obtain 
 provision for his old age by promising the person who 
 maintains him at that time a definite share of his 
 property. But, on the whole, the inheritance contract 
 is too much at variance with the principle of individual 
 liberty to be regarded as a healthy institution, and 
 
§20] PROPERTY AS A WHOLE 203 
 
 wherever blind dependence on earlier social conditions 
 has led to its adoption, it must be looked upon as a 
 legislative mistake. 
 
 (&) Great difficulties have been raised by the ques- 
 tion, whether individualism in the disposition of property 
 shall be given free rein, and everyone shall be allowed to 
 dispose of his property unconditionally, or whether cer- 
 tain restrictions must be imposed. It is so well known 
 that, in this respect, different systems of law have taken 
 different courses that the point need not be further dis- 
 cussed here. But it must be said that, in this regard 
 the psychic conditions of a nation, and especially the 
 influence of social motives, come under consideration. 
 The praise and blame of society (nota censoria) are fac- 
 tors that cannot be ignored: in this regard, society plays 
 perhaps the part of a censor that is still highly respected, 
 even though the mind of the people does not make itself 
 fully felt until after the death of the testator. In addi- 
 tion, national custom, family feeling, the way in which 
 property is administered, will all exercise a strong 
 influence; and thus it may happen, that the individual 
 is given the full right of disposition, since other circum- 
 stances guarantee that the principal outgrowths of exag- 
 gerated individualism will be avoided. 
 
 Other nations do not trust in this, and therefore pro- 
 vide that at least a portion of the property must remain 
 for the legal heirs or certain near heirs. In this connec- 
 tion, we speak of a free portion (Freiteil) in contrast 
 to the privileged property, or of a compulsory portion 
 (Pflichiteil) ; in as far, as certain persons have the 
 capacity to require that they shall not be deprived of 
 the portion of the inheritance that would fall to them by 
 legal succession. There is wide variation in legislation 
 as regards this point; but in most European countries, 
 the right to the compulsory portion has been estab- 
 
204 THE LAW OF PROPERTY [CH.VII 
 
 lished. Some other systems of law, for instance that of 
 Islam, allow the disposition of only a portion of the 
 property. One of the disadvantages of the compulsory 
 portion is, indeed, that it prevents the carrying out of 
 highly important dispositions of property, and especially 
 does it make it impossible for the head of the family to 
 keep the estate together by leaving it to one child, so 
 that by voluntary disposition conditions might arise 
 similar to those that were described in connection with 
 the inheritance right of the eldest or youngest son. 
 
 (c) A third question concerns the creation of future 
 estates, in the testament providing for a succession of 
 heirs (sukzessive Testament), in which it is provided 
 that one and the sam.e estate shall be subject to different 
 successions in turn ; so that after one succession a second 
 and a third follow: limited inheritance {Vorerbschaft) , 
 reversionary inheritance (Nacherbschaft) . This rela- 
 tion operates as a restriction on the limited heir {Vorer- 
 be); for as the transition to the reversionary heir 
 takes place by virtue of a conditionsubsequent (auflo- 
 sende Bedingung) the disposing capacity of the limited 
 heir is naturally much limited by reason of the condi- 
 tion subsequent. Further restrictions, too, are often 
 necessary in order to secure the property to the rever- 
 sionary heir. This gives rise to a legal situation, in 
 which, on the one hand, the limited heir is restricted, 
 and, on the other, the reversionary heir is secured; 
 hence, even though the reversionary heir is the one who, 
 in all probability, would succeed the limited heir in any 
 event, yet the situation is a different one: for the fact 
 that the property is entailed (Verklammert) , provides 
 for the reversionary heir, whereas otherwise, as the heir 
 of the limited heir, he might suffer by the property being 
 squandered in the hands of the limited heir. The ques- 
 tion is whether the testator shall be allowed to bind the 
 
120] PROPERTY AS A WHOLE 205 
 
 estate that will descend to his heir in such a way that 
 the heir cannot dispose of it, and that it passes from 
 him on to a second person (the reversionary heir). 
 
 Here, too, we find the same struggle between indi- 
 vidualism and the social mission of the law. The entail 
 and the restriction that it imposes on the first heir 
 often proves a great obstacle to the latter in the develop- 
 ment of his personality. On the other hand, it may be 
 advantageous if the property is all kept together, and 
 descends in its undiminished totality to a later genera- 
 tion. This is especially the case because a provident 
 generation is often followed by- an improvident one; 
 in this respect, this institution is often beneficial, as it 
 saves the estate for the third generation. To what 
 an extent this whole institution is a social need is 
 shown by the fact that Roman law, which at first 
 refused to recognize it, later accepted it in a roundabout 
 way; that is, by way of the universal fideicommissum, 
 and that the French code which at first fought tooth 
 and nail against this institution has yet, to a certain 
 extent, acknowledged the justification of its existence. 
 On the other side, such dispositions, tying up property 
 as they do, may be not only injurious to the individual, 
 but a menace to culture as a whole. 
 
 We have to do here, as always, with the choice be- 
 tween two systems, of wliich each has its advantages and 
 disadvantages, and in this case, too, special cultural 
 conditions will have to determine in which system the 
 advantages or disadvantages predominate. We assume, 
 today, that a certain tying up of property cannot well be 
 avoided, but that it must be within certain limitations, 
 so that it does not bind whole generations and cen- 
 turies; for otherwise this, too, would be a case in which 
 individualism would dig its own grave. The far-reach- 
 ing hand of the testator who would enforce his will in 
 
206 THE LAW OF PROPERTY [Ch.VII 
 
 distant future generations destroys the liberty of other 
 individuals, and presumes to make rules for distant 
 times. Of course, later periods will not always acquiesce 
 in this, and thus here, too, the necessary limitation arises 
 out of the struggle between the different systems. It is 
 usual, therefore, to take a more or less middle course, 
 and to allow the control of estates for a certain period of 
 time, after which the property becomes free. 
 
 (d) Of most particular importance is the possi- 
 bility of permanently establishing the estate in such a 
 way that it is devoted to a certain definite purpose, and 
 even in the future may have no other uses but to serve 
 this purpose. Such dispositions are necessary, since 
 many cultural aims can only be accomplished in this way ; 
 and especially is it of high value that certain undertak- 
 ings should receive steady and unceasing support, and 
 should not be cultivated only for a time and then thrown 
 aside. The audacious daring of the human intellect 
 requires stability, not only on the part of the individual 
 but of the whole. Only thus can the highest aim be 
 attained, whether it be of knowledge, in esthetic or 
 religious education, or only in beneficence and economy. 
 
 Thence follows, as a matter of course, the justification 
 of the Foundation as an institution, and the demand 
 that the law's attitude toward it shall not be repellent 
 but encouraging. On the other hand, the dangers must 
 not be underestimated; for certain aims may, possibly, 
 be only of temporary significance, and certain activities 
 that are beneficial at the time may run counter to the 
 interests of the future; hence, it was found necessary to 
 impose greater or lesser restrictions. Yet, the idea of 
 the Foundation is a fruitful one, and important both in 
 the present and for the future. It has been much 
 developed in the Orient and in the Occident, and belongs 
 to the bright pages of the Greek system of law. 
 
§21] NATURE AND IMPORTANCE 207 
 
 THE LAW OF THE BODY POLITIC 
 
 CHAPTER VIII 
 STATE LAW . 
 
 FIRST MAIN DIVISION 
 THE STATE 
 
 SECTION XXI 
 I. NATURE AND IMPORTANCE 
 
 1. The State as a Personality 
 
 1. The State is a community organized into a per- 
 sonality which, by virtue of its own law, takes upon 
 itself the task of promoting culture and opposing non- 
 culture; and it aims at performing this task not only 
 in certain respects, but in all the directions of human 
 endeavor and development. Even though other insti- 
 tutions promotive of culture may exist, as well as the 
 State, yet they should be active within the State and 
 by virtue of State organization, penetrating this organ- 
 ization in such a way that they too become parts of 
 State life. 
 
 2. The State is, therefore, a State of culture, and as 
 such, it is not only its own justification, but its own 
 sanctification. To doubt the State is to doubt culture; 
 for a development of culture without a systematized 
 energetic activity of the whole, and without the necessary 
 social means of protection is an impossibility. 
 
208 STATE LAW [Ch.VIII 
 
 3. Hegel expresses this by declaring the State to be the 
 realization of the rational idea, and in striking words 
 Nietzsche, too, has explained that it is an indignity even 
 to call the State to account and ask for its credentials.' 
 
 4. The "culture" State stands in contrast to the mere 
 "legal" State that was much taught at the beginning 
 of the nineteenth century ; as if the State's sole mission 
 were to realize and establish the law and nothing more. 
 This view is entirely wrongheaded, and assigns a poor 
 place to the State and its aims. The fact that formerly 
 in national assemblies, justice was pronounced, laws 
 were made, and ordinances were issued, does, indeed, 
 imply a certain intimate relation to the administra- 
 tion of justice; but, only, because at that time the 
 different activities of the State were not separated, and 
 all its functions were treated equally in the national 
 assembly. Hence, no support can be found in this for 
 the idea of the "legal" State. 
 
 The "legal" State is of importance only inasmuch as 
 the State should be not alone a ^^ culture" but also a "legal" 
 State. Culture having created not only the law, but 
 also rights, the State should not overthrow these rights 
 and trample them underfoot; but, while upholding 
 them as far as possible, should proceed with the develop- 
 ment of culture. It must be admitted that this will 
 sometimes lead to conflicts; for the demands of cul- 
 ture often require the downfall of existing rights. The 
 solution of this difficulty lies in the institution of expro- 
 priation; that is, in the possibility of destroying a right 
 by giving suitable and adequate compensation. Ex- 
 propriation is the real nerve of the "legal" State in its 
 connection with the cultural State. It expresses the 
 progressive inclination of the "culture" State, in contrast 
 to the conservative stability of the "legal" State. 
 
 • Compare "Archiv f. Rechtsphilosophie," I, p. 359. 
 
§21] NATURE AND IMPORTANCE 209 
 
 5. As has been said, the justification of the State 
 lies in this, that it is a practical union of men, for the 
 purpose of opposing whatever is contrary to culture, 
 advancing culture in all its forms, and furthering the 
 education and development of mankind. 
 
 Man cannot act effectively except in such collective 
 unities. It might, indeed, be put forward as a desidera- 
 tum that the individual State should only be a subor- 
 dinate member of one great whole; but the time is far 
 from ripe for such vast ideas of universality. The 
 inhabitants of the individual countries are still too 
 different, their languages and methods of thought too 
 peculiar to themselves, to allow of any such union. We 
 are only attaining to a kind of world-State gradually, 
 by the drawing closer together of the individual States, 
 and the embodiment of the community of cultural en- 
 deavors in common legal institutions. But, as long 
 as this has not taken place, the State remains the repre- 
 sentative of culture, to whose will the individual must 
 necessarily bow, and which is allowed to oppose resisting 
 elements, and to hold antagonistic forces in check. It 
 is its duty, moreover, to force home the knowledge that 
 ideals rule in culture which no nation can permit to be 
 crippled. 
 
 2. The State and the Individual 
 
 1. The State cannot exist without making great 
 demands of individuals. It even requires of them the 
 service of body and life, in as far as the preservation of 
 the whole, the independence, or the honor, and the 
 ideal possessions of the nation are concerned. But such 
 sacrifice is the less oppressive because without it, not 
 only would the State perish, but likewise the individual 
 would be fettered and bound: the enemy that con- 
 quers the country would also tyrannize over its people. 
 
210 STATE LAW [Ch. VIII 
 
 Hence, the individual's devotion is not disinterested 
 sacrifice, but rests on the co-operative position of the 
 individual in the State. 
 
 2. Other performances that are required are the 
 contribution of property, also necessitated by the in- 
 dividual's co-operative position. But this matter, also, 
 must not be left to chance: the burden must be suit- 
 ably distributed. The better regulation of this distri- 
 bution has only been accomplished in modem times, 
 since the science of finance has established the standards, 
 according to which the assessment should be made. 
 It must be governed, in particular, by the ability to bear 
 it, that is, by the possibility of the individual's making 
 such a sacrifice of property, according to what he pos- 
 sesses: but it must also take into account what share 
 the individual has in the achievements of the State. 
 The presentation of this sphere of knowledge leads us 
 into the realm of legislative policy, and modern social 
 science, and may therefore be omitted here. 
 
 3. The State and its Organs 
 
 1. The State needs a staff of organs that are active 
 for it in the most various directions; for its objects are 
 so many-sided, that they can only be attained if a large 
 number of experts devote their whole power to these 
 purposes. Nevertheless, the State must not be merely 
 a bureaucratic State. It is a vital matter that also 
 non-technicians, so-called laymen, should share in its 
 government. This procures not only obvious and direct 
 advantages, but also great indirect ones. It is true that 
 the layman, as regards technical education, trained 
 ability, and experience, is decidedly inferior to the 
 official, but his activity is of great advantage in that 
 it prevents State institutions from ossifying, and 
 the functions of the State from becoming one-sided. 
 
§22] EVOLUTION OF THE STATE 211 
 
 It invigorates the government with new life, new views, 
 new experiences, in connection with the rich activities of 
 life. The government should not be lifted entirely out 
 of the whole national life, but should stand in the centre 
 of it. All the insight of the citizens, as a whole, should 
 be made of service to the State. 
 
 2. In addition, the presence of the layman is of great 
 indirect importance; for it preserves the unity of the 
 State, it prevents the growth of impassable chasms 
 between the governing and the governed, between those 
 who have a voice in the conduct of the State and the 
 rest of the people. A strong dividing wall between the 
 two is a great evil : it fosters division among the people, 
 and leads, especially, to a lack of confidence in the 
 government and its measures, and to the fear of being 
 taken advantage of by the ruling organs. This dis- 
 appears when men of the people enter into the govern- 
 ment, not permanently, but temporarily, and with 
 constant changes ; so that a steady stream flows from the 
 government to the people, and from the people to the 
 government. This is for the most part also the signifi- 
 cance of the national assembly and of the parliament. 
 
 SECTION XXII 
 II. EVOLUTION OF THE STATE 
 
 1. The State was originally a totem State, and 
 consisted of the union of various groups bound together 
 by the unity of their animal god, which sacred bond, 
 however, gradually went to pieces, leaving the clan or 
 family tie. This is based, as was the sacred bond, mainly 
 on the unity of blood, but with the rejection of the 
 
212 STATE LAW [Ch.VIII 
 
 animal god which had fused the families together in 
 one uniform spirit. Worship of ancestors then took 
 the place of the totem belief, and it is the spirits of the 
 dead that hold the family together, give stability to the 
 clan, and in the worship of which the whole finds its 
 consecration. All our cultural States were formerly 
 clan-States; and in the unity of blood, the unity of 
 descent, the unity of their view of life, lay their strength. 
 Such a clan-State does not require clearly defined terri- 
 tory. It remains the same even when the clans wander. 
 The German tribes remained as they were, even when 
 they wandered from the Balkans over the endless 
 Russian plains to the Elbe, from there to the Rhine, to 
 the Rhone, and from there to Italy; and it is just the 
 same with the numerous Bantu tribes and Hamitic 
 peoples who wander, constantly changing their place of 
 abode. There is an extraordinary communal nerve in 
 this clan connection; and it is comprehensible that all 
 phenomena of life under these conditions are social in 
 character; and that all thought and action unite in 
 the idea that each individual is a member of the tribe 
 whose famous ancestors are worshipped as divine, and 
 that he performs his great deeds in the sight of his 
 forefathers. 
 
 2. A tremendous change takes place when the tribal 
 tie gives way to the territorial tie; and this appears in 
 two new legal institutions which embrace all life and 
 activity. The first is that persons are received into 
 the nation who do not belong to the tribe; so that the 
 number of clans and families can constantly increase; 
 and that in this way persons enter who do not worship 
 the common spirits of the tribe, and whose ancestors are 
 in no way connected with the ancestors that compose 
 the tribal cult. This is, of course, a sign of a certain 
 decline of ancestor worship, and the clans certainly 
 
522] EVOLUTION OF THE STATE 213 
 
 must have felt this for a long time, and have persecuted 
 the intruders with all their might ; nevertheless, this event, 
 like every other development that lies in the hidden folds 
 of the world's history, cannot be prevented. What uni- 
 versal history desires may for a time be delayed by the 
 mind of man, but cannot be permanently suppressed. 
 3. A second factor comes under consideration. 
 Whereas, formerly, the tribe lived in and to itself, includ- 
 ing only itself and its slaves in the sphere of its power, 
 and leaving its neighbors alone even when they lived 
 on the same land, the necessity now arose of exercising 
 complete dominion over a certain territory in which 
 the members of the State have the upper hand. Dis- 
 putes with those living outside the boundaries, however, 
 became so numerous and violent that there was no 
 alternative but to extend the authority to them also; 
 at least to the extent of repressing certain activities 
 injurious to the State, establishing certain police regu- 
 lations, and defending the State against the encroach- 
 ment of this alien' population. Chieftainry especially 
 is often very prominent in this connection. Herewith 
 the idea of the territorial State is firmly established; 
 not only do the tribes admit others to their ranks, but 
 even persons who are outside the circle of those belong- 
 ing to the State must submit to the commands of the 
 ruling people. This was the system that was carried 
 out in all our culture States after the destruction of the 
 old Germanic principle of personality. Only in the 
 Orient does the old system still exist; but there is a 
 privilege that the Occidentals with their high culture 
 have obstinately wrested from the Orient: the Occi- 
 dentals refuse to submit to the law and jurisdiction of 
 Turkey and Persia, and wish to live under their own 
 laws and own authority, even on the territory of these 
 Oriental States. 
 
214 STATE LAW [Ch.VIII 
 
 4. A further division into classes of the population 
 is sometimes accomplished by way of conquest. It 
 often happens that the conquerors force back the 
 original people entirely, or so decimate them that they 
 no longer play any part in the life of the State. But 
 not infrequently the old population is preserved as a 
 second layer or class, if for no other reason than because 
 the conquerors are not able to perform all the useful 
 labor that is necessary to the maintenance of their life, 
 and hence make use of the conquered inhabitants as a 
 servant class. The latter may be oppressed and held 
 in slavery or helotry, or they may be granted a freer 
 position, partly in recognition of their developed civiliza- 
 tion, partly in consideration of the fact that free labor 
 appears to be more advantageous, or that the original 
 people are so far masters of the situation that the con- 
 querors must live on terms of agreement with them, 
 and cannot utterly subjugate them. 
 
 In this way, a mixed population easily arises in which 
 the conquerors assume the r61e of ihasters, and form a 
 sort of nobility in contrast to the lower inhabitants. 
 (Compare p. 96.) 
 
 Sometimes , another layer or class of population is formed 
 by the addition of some other people that is dragged 
 from its own place of abode and settled in the country. 
 
 All these circumstances oblige the tribal State to adapt 
 itself to the altered conditions, and to blend the added 
 elements more or less with the life of the State. 
 
 5. In the transition from the tribal State to the 
 territorial State, much of the unity of the people is trans- 
 ferred to the State territory, and the State system of 
 rulers now embraces the land without reference to the 
 inhabitants. 
 
 This might easily lead to the conclusion that a man's 
 residence on State territory established the fact of his 
 
§22] EVOLUTION OF THE STATE 215 
 
 belonging to the State. This of itself would mean a 
 tremendous transformation: there could no longer be 
 any citizenship independent of the place of residence. 
 But such a development could only thrive if the aspira- 
 tions and endeavors of the different States were so uni- 
 form that the change of allegiance from one to another 
 could follow without a displacement of interests. Hence, 
 it was possible to carry out this system in a confederacy 
 of States; so that its citizens could belong to one or 
 another of the individual States according to their resi- 
 dence or place of abode. But as long as the interests of 
 States are so various, indeed, even antagonistic, and 
 each State develops independently to a certain extent, 
 this system would be detrimental. Neither would it be 
 ethically desirable; for in such disputes and struggles, 
 it is necessary for the individual to adopt a certain 
 definite course, and to make the collective interests of 
 one or another of the communities his own. Hence, it is 
 still necessary to maintain citizenship apart from the 
 place of residence, and to give it a greater significance 
 in the position of the individual in legal life; also, in 
 particular, to combine political activity with citizenship. 
 
 6. In spite of the territorial principle, therefore, the 
 difference between citizens and aliens still exists; and 
 in such a way that citizens still remain citizens, even if 
 they settle in a foreign country; and that aliens living in 
 the State must indeed submit to its laws, but can have no 
 part in the government, and that their family conditions 
 are regulated according to their hereditary rights. 
 
 Thus, a certain disagreement arises which, however, 
 is allowed to remain as long as it is not dangerous to the 
 State. But if it becomes undesirable, it then is neces- 
 sary to drive the aliens out. 
 
 A complete solution of the disagreement has never 
 been achieved, and will not be here attempted. A 
 
216 STATE LAW [Ch.VIII 
 
 compromise has been adopted by some States, however, 
 based on the principle that in certain cases the aHen 
 becomes a citizen without further steps. Thus, the 
 rulp has been estabUshed that an individual bom in 
 the country is a citizen, or, in some States, only if also 
 his parents were bom there. And instances are not 
 few where residence for some time suffices to give aliens 
 the right to acquire citizenship. In this way the num- 
 ber of foreigners living in the country can be reduced, 
 and the discord spoken of above can be partly avoided.' 
 
 SECTION XXIII 
 
 III. THE STATE IDEA 
 
 1. State Theorists 
 
 1. The whole series of imaginative representations 
 of the State based on a lofty conception of the destiny 
 of man, and of the significance of the State in the develop- 
 ment of humanity, began with Plato. These Utopian 
 compositions did indeed emanate from an ideal and 
 visionary mode of thought, but they are still of great 
 importance as marks at which a perfection of the State 
 can aim; for it is always beneficial to humanity if the 
 ideal is held up before it. 
 
 2. Plato's ideal State was, it is true, arbitrary in a 
 
 high degree. He disregarded not only historical facts, 
 
 but also the psychic conditions of human development, 
 
 and thus gave occasion for aspirations which with 
 
 despotic power attempted to bring about a definite 
 
 new order of conditions; but, not being in harmony 
 
 ' In this connection, compare my essay on international law in the 
 "Z. f. Volkerrecht," iii, p. 113, i. 
 
523] THE STATE IDEA 217 
 
 with the psychic conditions of the peoples, necessarily 
 failed. The attitude of humanity may, indeed, be influ- 
 enced from without, but the actual motive power must 
 proceed from the soul of the nation; and the essence 
 of royalty does not lie in forcing everything upon the 
 people, but in the ability to direct, more or less toward 
 its own aims, the impulses and instincts that are inherent 
 in the people. 
 
 Much may be traced to Plato's mood and to his depres- 
 sion of spirit, in regard to the conditions of his time.' 
 Hence, in his Utopia we find both remarkable progress 
 and extraordinary regression. He describes the sexual 
 tie as group marriage, much the same as the old group 
 arrangement; so that it is not knovvTi of any child who 
 his father is, scarcely who is his mother; this has a 
 connection with the modem idea of selection and State 
 supervision of the sexual relation. 
 
 Community of'property also is a perfectly antiquated 
 phenomenon wtiich the Greeks had long since left behind 
 them; while, on the other side, no one before Adam 
 Smith, at least, has so clearly explained the advantages 
 of the division of labor as Plato. Exceedingly progres- 
 sive are his ideas on the development of women, to 
 whom he would give a position in the life of the State 
 similar to that occupied by men; accompanied by com- 
 plete dissolution of the family, however; for not only 
 are the children to be trained and educated by the 
 State, but even the suckling of infants is to be a common 
 duty. 
 
 We also see in Plato (as in Aristotle) ^ the historical 
 limitations of the Athenian philosopher; work, unless it 
 be the work of governing, or artistic and philosophic 
 production, is to him low and slave-like, and is there- 
 
 • Compare Zalesky in "Arch. f. Rechtsph.," I, p. 395, 545; II, p. 89. 
 •See above, p. 95 (7), 177. 
 
218 STATE LAW [Ch.VIII 
 
 fore left to a lower class of the people, who are treated 
 more and more like bondmen. This is the grossest 
 error into which a State can fall, for the nobility of labor 
 will elevate the forces of the people ; and by the increase 
 of technical economic production alone can we attain 
 the control of the world. To this may be added that 
 this production must stand in the closest relation to the 
 advance of our scientific knowledge of nature, which can 
 only be the case if technic, too, is ennobled, and fully 
 recognized by science as its equal. 
 
 3. There is something quite unhealthy about the 
 whole, nor is it clearly thought out. What must repel 
 us most, however, is that a man with such an artistic 
 mind, whose art in dialogue has never been excelled, 
 whose language is the delight of all scholarly men, takes 
 a position entirely antagonistic to art, and rejects its 
 creations as deceptions and frauds, failing to perceive 
 that it is just art that can best present his ideals and 
 keep before our eyes, by the constant crecition of worlds, 
 the relativeness of the sensible world. Aristophanes has 
 therefore also derided Plato's "Politics"; and in the 
 work of his old age, in his "Laws," Plato has materially 
 changed the original ideal, though scarcely in an attrac- 
 tive manner — the State that he describes in this later 
 work is an agrarian police-State with a strictly regulated 
 family regime. 
 
 4. The whole sophistry and world-remoteness of 
 Plato's Utopia has been ably exposed by Aristotle in his 
 inestimable book on Politics. In contrast to this arti- 
 ficial State compulsion, Aristotle goes back to the nature 
 of man and utters the famous words that man is by 
 nature a social being, and that the political community 
 is his proper natural state. Better than anyone before 
 or after him, he knew how to show that man, more 
 than any other creature, was created for companionship, 
 
§23] THE STATE IDEA 219 
 
 as his language alone proves. He even says strikingly 
 that the State naturally existed before the family and 
 the individual, a remark that has been much misunder- 
 stood, but which is fully corroborated by our present 
 knowledge of primitive conditions. This knowledge 
 makes it certain that, originally, the individual did not 
 come to the fore, but existed and acted only as a member 
 and organ of the whole. And he also asserts, antici- 
 pating Hobbes, that if man is not properly governed, if he 
 lacks laws and rights, he might become the worst of all 
 creatures. But control of justice must emanate from 
 the State, that is, all virtue begins with the community. 
 From this grand structure he then undertakes to con- 
 struct the State, after which he ably rejects the Utopias 
 of communism and ultra-collectivism. He points out 
 that the resources of the earth do not find their proper 
 usefulness except by the participation of the interests 
 of individuals, and emphasizes that two things, in par- 
 ticular, are the objects of man's care and love: what 
 is his own, and what he longs for. What makes owner- 
 ship a boon to the nations is that each individual may 
 devote himself to own property; great virtues, like 
 generosity, cannot make their appearance until the indi- 
 vidual has possessions that he may call his own. With 
 the sameweapons, he attacks the community of wives 
 which he says entirely destroys family life, and dis- 
 torts the relation between children and parents; for 
 the same reason, he criticises sharply the lax discipline 
 of the women in Sparta, and lays stress upon the fact 
 that essential cultura.1 conditions of the State are thereby 
 disrupted. He also turns, with remarkable skill, against 
 the inorganic unity that would arise if all such distinctions 
 as family, village community, etc., were removed, and 
 individuals were simply merged in one great ungradu- 
 ated, disconnected mass. The unity must be organic, 
 
220 STATE LAW [Ch.VIII 
 
 just as in music the symphony must not become simply 
 a monotone, nor rhythm merely a single measure. 
 
 6. Aristotle's idea of the State could not reappear 
 until in the Middle Ages, when Aristotle himself became 
 known. He was first revealed again to the Occident 
 by the Arabian philosophers, especially Averroes, Alfa- 
 rabi, and Avicenna, who, however, represented at the 
 same time the idea of Persian sufism, and thus became 
 the founders of Germanic pantheism which in its day 
 was such a powerful leaven in the whole development of 
 the Middle Ages. 
 
 But Aristotle's theory of the State necessarily con- 
 flicted with the idea of imperialism, for Grecian life had 
 never had to do with a great, broadly outlined State, 
 but only with small republics. But world imperialism 
 became the ruling ideal in connection with the Roman 
 Empire, and the policy of Charlemagne who, by defend- 
 ing the papal throne against the Longobards, gained for 
 himself the imperial crown, and brought about the trans- 
 fer of the imperial power from Rome to Germany. A 
 foundation was now wanting. The theory of the Chris- 
 tian imperial power, the belief that the emperor was 
 the successor of the Roman emperor, dominated the 
 minds of men for centuries; and the ablest intellects 
 endeavored to explain the nature of the empire and its 
 historical origin. It was assumed that the choice of 
 the emperor had rested with the city of Rome, and that 
 Rome had transferred its prerogative to the German 
 elective body.' 
 
 The German emperor was considered to be the emperor 
 of a world, not the king of a country; and the under- 
 lying idea was the union of the whole Christian world — 
 an idea that necessarily took deeper root because the 
 Occident, owing to the attacks of the Saracens, was 
 
 » See my treatise, "Dante als Prophet," p. 56 f. 
 
§23] THE STATE IDEA 221 
 
 obliged to combine in its own defense, and, in the Cru- 
 sades actually carried out the unity of Christian life. 
 
 (a) Church and State 
 
 1. In the relation between the spiritual and the 
 temporal power, there are three systems, all of which 
 are represented in the nations. One is Caesarean papistry 
 in which the spiritual and the temporal power are invested 
 in one person, as among the Peruvian Incas, and in the 
 Caliphate; or the relation between the two powers is 
 such that a certain agreement and harmony are assured ; 
 as, for instance, among the Aztecs, where a member of 
 the royal family was the chief priest, a system not 
 indeed equal to the first, but in some respects directed 
 toward the same ends. The third system is the oppo- 
 sition of the two powers which may lead to tremendous 
 struggles and conflicts, prolonged for centuries; but 
 which, on the other hand, has the double advantage, 
 that in this way the intelligence of the people is increased 
 to the utmost, because each of these powers seeks to 
 attract to itself the leading spirits of the nation; in 
 addition, this conflict will be a protection and safeguard 
 for the people, each power affording the nation protec- 
 tion from the tyranny and arbitrariness of the other. 
 In this way, the conflicts of the Middle Ages, beginning 
 with the disputes about investiture, to the bull "unam 
 sanctam," and the decline of the Imperial idea, should 
 be understood and appreciated. It is entirely unhistori- 
 cal to place one side or the other in the wrong; both 
 together were effective in attaining the mediaeval progress 
 of culture. 
 
 2. When St. Augustine advanced the idea of the 
 kingdom of God, and, in contrast to it, the sinful king- 
 dom of man, people necessarily became familiar with the 
 idea of formulating the relation of the universal State 
 
222 STATE LAW [Ch.VIII 
 
 to God and divine government. The first man who 
 constructed a comprehensive State system on this basis 
 was an EngHshman, John of Salisbury, who Uved in the 
 twelfth century, at the time of the struggles between 
 Henry II and Becket, which thoroughly stirred up the 
 question of the relation between the State and the 
 Church. This was a few decades after the investiture 
 dispute had convulsed the world, and aroused thinking 
 minds. John of Salisbury distinguished between divine 
 and earthly Natural Law. He stated that the divine law 
 applied also to rulers. Whoever exceeded it was a 
 tyrant and subject to the law of resistance, which, in 
 extreme cases, where the tyrant was incorrigible, might 
 even bring about his murder. For the rest, even he 
 advances the two sword theory, and infers from it that 
 royalty is granted by the Church which can also recall it. 
 He is not a strict curialist, but is moderate in his presen- 
 tation as in his life; nevertheless, he may be reckoned 
 among the founders of curialism.^ 
 
 3. Thus the spiritual and the temporal power, the 
 divine State and the imperial State are placed opposite 
 each other, and conflicts were unavoidable. 
 
 Besides the two sword theory, there were also other 
 forms of thought that had their part in these conflicts. 
 The relation between the Church and the State was con- 
 sidered to be similar to that between the sun and the 
 moon ; from which it followed that the State shone only 
 with a borrowed light ; and another important argument 
 was the so-called Constantinian "donation" which con- 
 sisted of a number of privileges which the emperor 
 Constantine had bestowed on Pope Sylvester. This grant 
 was a clear fraud, it is true, but it was not known to be so 
 until much later; for centuries it was one of the comer- 
 stones of curialism. Yet, even at that time, it was 
 
 • Compare Schubert, "Staatslehre Johannes v. Salisburys." 
 
§23] THE STATE IDEA 223 
 
 objected that such an act could not give away perma- 
 nently essential parts of State power. These and others 
 were the arguments of the curialists and Ghibellines, 
 especially of Dante in his Monarchia; while Marsilius 
 of Padua went even farther, and advocated the complete 
 subordination of the Church to the State, on the ground 
 of the sovereignty of the people.' 
 
 4. The idea of an emperor of the world was still at 
 its height in the thirteenth century. It was attacked, 
 however, not only by the curialists, but by the scholars 
 of France and England, who naturally were not pleased 
 with the idea that their power should be dependent on 
 the Roman Emperor. Thus in John of Paris and in 
 Dubois we find a reaction from the whole imperial idea; 
 and Occam shows clearly that the day of world-imperial- 
 ism was over. In addition, the discovery of Aristotle's 
 doctrine, and of Averroism, with its theory of the collec- 
 tive soul of the people, was at variance with the imperial 
 idea. From Aristotle's doctrine, the theory of the 
 sovereignty of the people, already advanced by Mar- 
 silius, was developed. Althusius in particular presented 
 it in a very pronounced form, while Bodinus developed 
 the doctrine of the "majestas" of princes.' 
 
 (b) Contract Theory of the State 
 
 1. With Hugo Grotius the contract theory of the 
 State, which had already been much discussed, became 
 the general theory of the educated world.' It did not 
 indeed remain unassailed, and opponents of the great 
 Dutchman were not lacking, but in the end it triumphed. 
 
 'Compare "Dante als Prophet," p. 61, ff. 
 
 •Compare "Einfuhrung in die Rechtswissenschaft,"' (3 ed.), p. 128. 
 
 • The Spanish exponents of natural law preceded him, of whom I 
 shall shortly write in the "Arch. f. Rechtsphilos." Hugo Grotius studied 
 these Spaniards industriously, as I have shown in an already published 
 report ("Z. f. Handels- R." vol. 69, p. 377). 
 
224 STATE LAW [Ch.VIII 
 
 By Staalsvertrag it was meant that originally men 
 wandered about in the world as individuals, but find- 
 ing that such a planless existence did not suit them 
 they combined, and agreed to renounce certain rights 
 with the idea of furthering their united interests. There 
 was some truth in this theory — ^not that it rested on an 
 historical basis, for the historical knowledge of that 
 period was slight — but the consciousness of the bene- 
 fits to be derived from social co-operation, and of the 
 innate feeling that the individual lost rather than gained 
 by isolation, must have impressed itself on the age with 
 peculiar power. No doubt could be entertained that if 
 mankind had once been scattered, yet the impulse to 
 unite had necessarily seized upon men. 
 
 2. Thus an original contract appeared to be such a 
 self-evident category in the law of nature that no doubt 
 was felt that it involved a necessary legal premise. The 
 question whether such an agreement once made would 
 bind humanity forever did not give rise to such grave 
 doubts in the minds of the scholars of that time as it 
 would at the present day. 
 
 3. The assumption, that formerly men had wandered 
 about as isolated individuals, was indeed entirely mis- 
 taken; on the one hand, it disagrees altogether with 
 history ; and, on the other, it is completely at variance 
 with human nature, which must have led men together 
 from the earliest times, and not only from the period when 
 the world was already full of worldly wise individuals. 
 
 4. The content of this State contract {Staalsvertrag) 
 was most variously characterized. Quite rightly it has 
 been already emphasized that it represents merely a 
 framework that can be filled in with everything possible, 
 for which reason, nothing can be done with the idea. 
 Everyone can assume something else that has been made 
 the subject of the agreement at the time, whether it 
 
§23] THE STATE IDEA 225 
 
 be practical or unpractical. In this connection, the 
 theories of Hobbes, Spinoza, and J. J. Rousseau in 
 particular, come under consideration. 
 
 5. One of the most interesting constructions is that 
 of Hobbes, who based the most extreme despotism 
 upon it, and in particular defended the rule of the 
 Stuarts against the parliament and the revolution. He 
 assumed that, at the time, the people had laid everything 
 at the feet of their rulers; for that was the only way 
 in which the brute in man could be subdued and rational 
 principles attained. In contrast to John of Salisbury, 
 among others, he declares that the people are not jus- 
 tified in proceeding even against tyrants, since the evils 
 brought about by such revolutionary desires would be 
 worse than the worst tyrant. Thus the State is the 
 Leviathan that devours everything. 
 
 6. The method of Spinoza's pantheism is antagonistic 
 to evolution, and could not, therefore, offer any basis 
 for an evolutionary philosophy of law. Hence, it is 
 comprehensible that Spinoza in his "Tractatus Theo- 
 logico-Politicus" accepts the theory of the State con- 
 tract. He elaborates it in a manner that is suggestive 
 of Rousseau's later development, but his treatment 
 bears traces of Hobbes's method of thought. (Compare 
 "Tract. Theo.-Pol." xvi, 12 ff.) Thus he teaches uncon- 
 ditional submission to the command of the State: the 
 command of God could only be appealed to in opposing 
 it, if there were an undoubted revelation to support 
 the appeal; otherwise the decision must rest with the 
 supreme head of the State and with him only; for if 
 everyone were entitled, on the ground of divine com- 
 mandment, to appeal against the law of the State it 
 would lead to the greatest evils (xvi, 61 ff.). This is 
 quite similar to Hobbes's doctrine, and Spinoza thus 
 arrives at a Caesarean papistry of the worst kind (21, 
 
226 STATE LAW [Ch.VIII 
 
 22 ff.), in which, however, the chapter on liberty of 
 thought and religion, stands out brilliantly with the 
 splendid words : 
 
 " Non finis reipuhlica est homines ex rationalibus bestias 
 et automata facere, sad contra ut eorum mens el corpus tuto 
 suis functionibus fungatur et ipsi libera ratione utantur." 
 
 Such an individualistic treatment is not indeed in 
 accordance with pantheism, and even if in his philosophy 
 Spinoza could not find the evolutionary historical nerve, 
 yet, the thought of the solitariness of the Divine Being 
 must have affected him, to the extent of causing the 
 idea of the organic growth of the State from within to 
 dawn upon him; and he repeats, though timidly, the 
 principle of man's being an "animate sociale." The 
 change followed in his "Tractatus Politicus," ii, 15 flf. 
 There the State contract disappears, and at the same 
 time he swings completely round from voluntarism to 
 rationalism. The State, too, is subject to laws; it too 
 may sin by establishing institutions that bring about 
 its ruin, and are contra rationis dictamen. The 
 State must observe the bounds of reason, and thus 
 preserve its majesty; for it cannot, at the same time, 
 be and not be. ("Tract. Polit." iv, 4.) Of course, 
 here, too, we find Spinoza's characteristic emphasis of 
 religious liberty based on the original ground: 
 
 "Omnia, ad quce agenda nemo prcemiis aut minis induci 
 potest, ad jura civitatis non pertinent." — Tract. Polit. iii, 8. 
 
 7. Jean Jacques Rousseau, on the contrary, assumed 
 that the people only delivered themselves into the 
 hands of the ruling power to a very limited extent. They 
 remained in the background, and were entitled to inter- 
 fere if their ruler did not govern according to their 
 ideas; and he believed that in all difficult situations 
 
J 23] THE STATE IDEA 227 
 
 the government of the people should be heard. This 
 power of the people, he maintained, was the first and the 
 last resort, and had unbounded scope. Thus, Rousseau's 
 contrat social became the war cry of the Revolution. 
 It introduced the revolutionary Assembly whose history, 
 a succession of waves of disorder, was nothing but the 
 logical presentation of Rousseau's doctrine, which, 
 theoretical as it was, did not reckon with the tremen- 
 dously destructive forces of the human soul. 
 
 2. Statesmen 
 
 1. In contrast to the theorists of State law are the 
 statesmen who were not concerned with putting forward 
 reasons for the justification of the State but with find- 
 ing its best form. The profoundest statesmen of this 
 sort were, on the one side, Niccolo Machiavelli, at 
 the end of the fifteenth century, and, on the other, 
 Locke and Montesquieu in the eighteenth. 
 
 2. Machiavelli's "Principe" is a "Principe" of a 
 period when the political virtues were lacking; hence, 
 when it was necessary to attain the power without 
 which the future of the State was hopeless, by reckless 
 unscrupulousness. The "Principe" ceases to be repel- 
 lent if it is regarded as a cultural, historical study, 
 arising from the rich experiences of that time, and the 
 fine and penetrating intellect of the great historical 
 scholar. The dubious point lies in this, that the "Prin- 
 cipe" seems to have won the heart of its able writer, 
 and was held up as a shining example. This may rest 
 on the moral obtuseness that characterized the time 
 of Alexander VI. But it may, also, be due to evolu- 
 tionary historical philosophy which holds the idea, that 
 where the history of culture requires it, morality must 
 become a secondary consideration. Machiavelli may, 
 however, and this is what Spinoza and others assumed, 
 
228 STATE LAW [Ch.VIII 
 
 have desired to hold up the frightful image of a "Prin- 
 cipe" to the view of the Florentines as if he had said: 
 "See, this is what it will come to, if you insist on having 
 a prince. He will be a rod to you ; he will chastise you 
 with lashings and scorpions, for otherwise he could not 
 be sure of his life." 
 
 With a man of such fine perceptions as Machiavelli, 
 however, it is impossible to say that he was led only 
 by one of these motives; probably he had several. His 
 "Discorsi" show that he did not advocate a permanent 
 dictatorship,'" but regarded it only as a step towards the 
 attainment of a real supremacy of the people. In any 
 case, the "Principe" is a cultural portrait of the Rena- 
 scence ; like no other, a sombre-hued picture of a certain 
 definite period; for his assertions do not fit any other 
 epoch. The political parties of the present day are 
 neither so enduring that it is necessary to get rid of 
 the resisting families in order to obtain the reins of 
 government; nor could such a system of hypocrisy be 
 carried out with the success that Machiavelli describes, 
 in an age like ours with the publicity and constant criti- 
 cism to which the mental lives of those who make his- 
 tory are subject in the press. When he says: "Few 
 know what you are, everyone knows what you appear 
 to be," we must retort, that today, indeed, it may be 
 possible for the semblance to which the reality gives 
 the lie to endure for a time, but certainly not for long. 
 Thus, we have passed beyond the Renascence period. 
 
 3. Locke's doctrine, in contrast to Machiavelli's, 
 did not emanate from constructive reflections, but was, 
 rather, purely the result of English observation; the 
 parliament having been in existence for centuries, and 
 parliamentary rights having been considerably increased 
 
 "Compare Alfred Schmidt, "Niccolo Machiavelli" (1907), and my 
 review in the "Zeitschrift f. Socialwissenschaft" XI, p. 654. 
 
§23] THE STATE IDEA 229 
 
 since the Bill of Rights. The important thing was to 
 formulate a system, according to which legislation 
 should not be left entirely to the individual sovereign, 
 but would require the consent of parliament, for so it 
 was in England. This he sought to present through the 
 following luminous idea: the administration of the law 
 must be just but in order to attain this it must not 
 proceed from the same organ as legislation; for if that 
 were the case, this organ, by means of a special law, 
 could displace the general'law and disregard it in the 
 administration of justice; thus there would, indeed, 
 be no stability in the laws. Hence the separation of the 
 legislative and administrative power was necessary. 
 
 4. This idea was much more impressively presented 
 by Montesquieu in his celebrated work, "Esprit des 
 Lois." There the three powers were sharply divided ; the 
 judicial power especially was established as a third, 
 with the peculiarity that the judges should be inde- 
 pendent, and should not act, as formerly, merely as 
 the council of the king. 
 
 This doctrine of the division of the powers exercised 
 a tremendous influence on the future, and contributed 
 not only to clarify the activity of the State, but also, 
 through the idea of the sacredness and independence of 
 the judicial office, to further security and confidence 
 in the administration of justice. In addition, this theory 
 was a support for constitutional government, and a 
 letter of defiance to the absolute monarchy. 
 
 6. Next to the doctrine of the three powers came 
 the doctrine of the rights of men. It contended that 
 men were, indeed, subject to the power of legislation, 
 and absolutely at the mercy of its might ; but that, on 
 the other hand, the individual as a legal subject has 
 certain inalienable rights as regards the administration 
 of justice; and, further, that the obligation rests upon 
 
230 STATE LAW [Ch.VIII 
 
 legislation to protect the existing rights of the individual, 
 as far as possible. This doctrine originated with the 
 dissenters who emigrated to America, and was then 
 accepted during the French Revolution with the greatest 
 fervency." 
 
 SECTION XXIV 
 IV. THE ORGANIZATION OF THE STATE 
 1. General Remarks 
 
 1. There can be no universal standards for the 
 organization of the State. People are in error when 
 they assume that one kind of State constitution is to be 
 regarded as the highest, as the final aim of development, 
 toward which eventually all countries must strive. 
 This is a relapse into the ideas of Natural Law, even 
 though it be in Hegel's refined manner. In reality 
 States that are quite differently organized may attain 
 the highest point to which their powers can carry them; 
 and we need only emphasize that one people will find 
 the right expression of its national being in one form, 
 another in a different one. 
 
 2. To develop the difference of these State constitutions 
 
 is a matter for general State law. It is only necessary 
 
 to remark that the idea of organization may vary greatly. 
 
 It may be that certain persons are destined, once for 
 
 all, to guide the State, a conception that formerly rested 
 
 on a religious mystical view, as if the godhead and the 
 
 power of the world pressed the staff of government into 
 
 the hand of one person or one family; or it may be the 
 
 general national idea, according to which the people 
 
 " "Einfiihrung" (3 ed.). P- 126. The idea of the rights of men is most 
 beautifully expressed in the American Declaration of Independence. 
 
124] ORGANIZATION OF THE STATE 231 
 
 are destined to rule, and must themselves form their 
 own organization ; the one its the monarchical the other 
 the republican system. 
 
 3. Many systems long outlive the original ideas 
 from which they sprang, and thus it is with the monar- 
 chical system. We do not believe that the powers that 
 rule the world are any more concerned with an individual 
 family or person who is to rule than with the destinies 
 of men generally; we believe that they are connected 
 with individual persons, only in as far as the whole 
 development of humanity emanates from a higher prin- 
 ciple; we do not believe in special intervention in indi- 
 vidual cases. Nevertheless, the monarchical idea will 
 continue to stand; it is justified by a variety of circum- 
 stances which are discussed below. Hence, even if 
 another view has been accepted, it is right that a legal 
 institution which belonged to a former conception of life, 
 and that has proved to be valuable, should be retained." 
 
 4. That organization, under which a person or a 
 family is called to the highest leadership, not by virtue 
 of the will of the people, but by reason of circumstances 
 that are independent of it, is called a monarchy ; although 
 in fact, it may also be a dyarchy; and this also applies 
 to an elective monarchy, because in this case the under- 
 lying idea is not that the monarch draws his royal author- 
 ity from the people, but that the people's choice is only 
 a method of finding the right person, that is to say, the 
 one that Providence has destined to rule. 
 
 5. Where it is assumed that the highest authority 
 is bestowed by the people, is drawn from the people in 
 assembly, we speak of a republic; the idea of govern- 
 ment by the people may be more or less pronounced 
 in it, according to whether the supreme head of the 
 State, after once he is elected, is independent of the 
 
 >' I need not enter into a discussion with those who are unable to grasp 
 this, and therefore accuse me of political mysticism. 
 
232 STATE LAW [Ch.VIII 
 
 governing organs of the whole people, or must entirely 
 subordinate himself to them. 
 
 6. Both in the republic and in the monarchy collec- 
 tive organs may exist beside the highest organ; that is, 
 organs that embrace the individual members of the 
 State. The true collective organ of this kind is the 
 popular assembly. It is extremely ancient, but has not 
 been able to maintain itself in larger States because the 
 membership was too extensive, and it proved too diffi- 
 cult for its sessions to be held in definite places, so it 
 was wrecked on the reality of life. 
 
 7. The collective organ of the people may, however, 
 consist of an elected circle of members of the people who 
 act in" the place of the totality. Such a supreme organ 
 that is wholly or partly elective is called a parliament. 
 In what is called the upper house, other circumstances 
 than election may determine the membership, and even 
 in the so-called lower house all the members are not 
 always counted. 
 
 2. Kingship 
 
 1. There is scarcely another institution that has 
 done so much for the growth of culture as chieftainry, 
 the consequence of the peculiar psychic constitution of 
 humanity, of the suggestive influence of strong natures, 
 and of the tremendous power which the recklessness 
 and superiority of individual genius exercises over other 
 persons; in other words, the consequence of super- 
 mankind and of the existence of overpoweringly strong 
 natures. The spirit of history was obliged to use this 
 means in order to advance mankind, even though it were 
 by force and compulsion; for such strong natures are 
 able to arouse and stir up the nations and to overcome 
 a stagnant and halting evolution. Certain progressive 
 movements of culture are always agreeable to them, and 
 
S24] ORGANIZATION OF THE STATE 233 
 
 in order to bring these movements about, they apply 
 powerful methods which universal history would not 
 otherwise know. Their effect may be likened to that of 
 a volcanic eruption which does indeed work great destruc- 
 tion, but also raises up new lands, and brings them within 
 the reach of culture. 
 
 2. The historical beginnings of chief tainry are prob- 
 ably originally to be found principally in bands of 
 youths; at any rate, to a great extent, though not 
 exclusively. In other ways, too, a bold warrior or power- 
 ful brigand could seize the authority of a chief. The 
 dangers that threatened a community from outside, in 
 particular, frequently gave rise to autocracy; for it 
 required a strong and ingenious personality who could 
 inspire the mass and hold it to withstand attacks from 
 without. If once such an individual by victory has 
 averted the external danger, he gains the confidence of 
 the people, and there is no limit to his power within the 
 nation; successes abroad have always served as a shield 
 and cloak for the true tyrant. 
 
 3. When once the chieftain has obtained control, it 
 will later be possible for him to surround himself with a 
 religious nimbus. Provided the priests are not against 
 him, it is easy for him to appear as the son of heaven, 
 or of the sun, or as some kind of divine messenger, and 
 to act as the exponent of the divine law. The result will 
 be that the whole foundation of the law is displaced, 
 and that the law will appear as an issue of his per- 
 sonality. Now he is in a position to sway and rule the 
 people at will. Thenceforward, his subjects are mere 
 tools in his hands, and the sacred relics of tradition dis- 
 solve under his power as soon as he desires it; as soon 
 as he seeks the advantage of the State in something else. 
 
 The further presentation of chieftainry and the 
 development of the idea among the different nations 
 
234 STATE LAW [Ch. VIII 
 
 does not lie within our province; but it is certainly our 
 task to describe what chieftainry did for the develop- 
 ment of culture, and how it later became kingship. 
 
 4. Its influence on culture undoubtedly lies mainly 
 in this, that it protected the country against outside 
 enemies, and thus secured the peace and quietude neces- 
 sary to its inward development. In addition, it fur- 
 thered the idea of the State and repressed the constant 
 dissipation of the population by kin-revenge and self- 
 vindication; for the chief wishes to maintain order and 
 strives, in order to extend his power, to take the adminis- 
 tration of justice entirely into his own hands. He is 
 also inclined to develop the resources of the country; 
 for the more it produces, the more his power and 
 wealth are increased, as he alone controls the country's 
 goods. 
 
 5. Chieftainry develops into kingship under the 
 influence of two ideas: first, the idea that permits the 
 State as well as the chief to be recognized as a per- 
 sonality. Even though the chief be the unrestricted 
 representative of the State, yet the conception is unavoid- 
 able that he has the State in his hands only tempo- 
 rarily, and this again will give rise to the thought that 
 he is only an organ of the State and that the latter, 
 though it be temporarily embodied in him, is yet dis- 
 tinct from him. 
 
 The second important idea is that of duty, the thought 
 that the advantage of the chief is not the sole considera- 
 tion, and that, as an organ of the State, he must act for 
 its benefit. This idea can only develop fully, of course, 
 where the conception of morality is already grown. 
 Nevertheless, it must appear in earlier times in the form 
 of a religious commandment, wherever religious notions 
 have become firm enough to allow clear principles and 
 regulations to be formulated; for which, above all 
 
§24] ORGANIZATION OF THE STATE 235 
 
 things, a separate priesthood is necessary which as the 
 exponent of the good may succeed in upholding religion, 
 even when opposed to the ruler. Wherever this religion 
 exists, it will require logical action in certain directions,- 
 and the indulgence of certain considerations, and will, 
 therefore, also demand of the sovereign that he shall 
 not give way to his moods. Thus, the way is levelled 
 for further development; and whoever feels it his duty 
 to care for the welfare of the people, who even takes an 
 oath to do so, as, for instance, among the Aztecs, is no 
 longer a chief but a king. 
 
 6. Kingship, like chieftainry, has a great task to 
 perform in the development of culture, and this is accom- 
 plished in several ways. 
 
 (a) The person who acts is firmly established in his 
 place, and can therefore influence certain cultural ten- 
 dencies far more incisively and logically than can any 
 other organ of the State. This, of course, also involves 
 a great weakness: the personality of the sovereign be- 
 comes of extreme importance, and there are wide mental 
 and psychic differences among personalities. One per- 
 son may be fitted by nature to rule, while another lacks 
 all talent in this direction. It has been attempted to 
 solve this difficulty by making kingship elective; so 
 that in this way a person could be chosen who had 
 already proven by his deeds that he was suited to the 
 office; but this system failed, because it led to corrup- 
 tion, and to constant upheavals, and to internal struggles. 
 A modified form of elective kingship is found among 
 some peoples, where of the members of the royal family, 
 one is chosen to reign who appears to be particularly 
 able; or, in some nations, a member who proves to be 
 unfitted is deposed in favor of another member. But 
 this system also gives rise to many disputes, quarrels, 
 and enmities. 
 
236 STATE LAW [Ch.VIII 
 
 (6) Kingship brings with it a certain strengthening 
 of the whole situation and frequently also greater pro- 
 tection against danger from without. 
 
 (c) It may prevent not only destructive movements 
 among the people from gaining the upper hand, but also 
 the appearance of powerful party elements which in the 
 form of plutocracy, class spirit, and party tyranny are a 
 hindrance to the real progress of the State. 
 
 (d) Kingship may create an intellectual centre, and 
 advance both arts and sciences; though such an arrange- 
 ment is not without its disadvantages; for the bad 
 features of the patronage of a Maecenus are often in- 
 creased if such patronage exists by the grace of the 
 king. 
 
 7. The principal remedy against the disadvantages 
 of kingship, especially in as far as they relate to the 
 contingency involved in getting an able personality for 
 the head of the government, is to place other powers 
 beside the king, such as the popular assembly or repre- 
 sentatives of the people (to which we shall return 
 later), and the ministry. 
 
 8. Like parliament and parliamentary government, 
 the system of ministerial assistance and ministerial 
 responsibility orginated in England. According to this 
 system, the king does not act alone, but requires minis- 
 terial assistance, so that acts of the State are only valid 
 if the minister also assigns them. This is important 
 because it makes the minister co-responsible; hence, 
 it will be difficult for the king to find a minister who 
 will sign an act that contains an undeniable infringement 
 of the constitution, and which would therefore involve 
 the minister in difficulties. This is also significant 
 where the parliamentary system does not exist, and 
 much more so, of course, with parliamentary govern- 
 ment. 
 
§24] ORGANIZATION OF THE STATE 237 
 
 ^ 9. In this way the outgrowths of the popular assem- 
 bly and chieftainry have become the constitutional 
 monarchy, in which, it is true, somewhat complicated 
 institutions appear. But it is just these complications 
 that, by the constant co-operation of a system of forces, 
 serve to protect the State from excesses and narrow judg- 
 ments, and to further the full consideration and investiga- 
 tion of all important factors entering into government. 
 
 3. The Popular Assembly 
 
 1. The popular assembly, one of the oldest of 
 national institutions, a centre of justice even in the 
 earliest ages, and at the same time the court before 
 which all internal affairs were settled, put forth off- 
 shoots up until within modem times; even though it 
 became impossible, with the extension of the power of 
 the State, to maintain it in its purity. As all defenders 
 of the popular assembly, even eventually J.J. Rousseau, 
 have recognized, it is only suited in its true form to small 
 unions; and if, under other conditions, it is desired to 
 preserve its fundamental ideas it is necessary to trans- 
 form it completely. 
 
 2. The idea of the popular assembly is this : it is the 
 totality of the people, and if it determines something, 
 its decision is not to be regarded as a resolution of the 
 majority, but as the expression of the organic unity 
 of the nation ; for the spirit of the people is made mani- 
 fest in it. Not until later is the conviction reached that 
 here, too, it is the individual mind that rules, and a 
 strong minority will sometimes make this very pro- 
 nounced. But this knowledge does not ripen until 
 later, when the conciousness of the individual person- 
 ality has awakened. 
 
 3. The idea of the popular assembly is so mighty 
 that even chieftainry, however much it might overthrow 
 
238 STATE LAW [Ch. VIII 
 
 the previous State organization, could not help making 
 certain concessions to it; if, solely, because chieftainry 
 itself was striving to be national and to live with the 
 people. (Compare above, p. 234.) 
 
 4. The institution of the popular assembly can be 
 retained in larger States in the form of the representative 
 constitution. This may be in two ways. Either the 
 nation is regarded as a whole that sends representatives 
 from its midst, or it is the different classes of the people 
 that appear for the nation. The latter is particularly 
 the class-constitution which was frequent in the Middle 
 Ages, but could not be maintained; because a constant 
 mixing of the classes took place, and because the atti- 
 tude of the classes became unavoidably the hotbed of 
 selfish ambitions. This class-constitution has there- 
 fore no longer any future. It is dead, and its death was 
 unavoidable; while representation of the whole arose, 
 and not only thrived from the time of its origin, but 
 has developed vigorously; for it has at the same time 
 the great advantage that it represents a union of the 
 people, and it is certainly the mission of our institu- 
 tions not to breed discord but harmony of the whole. 
 If factions and antagonistic tendencies develop in the 
 nation, these will indeed appear in the creation of the 
 parliament, but will not become fixed as they would 
 under the dominion of the class-constitution. They will 
 remain in constant motion, and new parties will con- 
 tinually form, and new disputes and reconciliations 
 will continually appear. 
 
 5. That kind of representation under which the 
 representation proceeds from the totality of the people 
 arose in exemplary form in England, and has spread 
 in modern times from there over nearly the whole do- 
 main of Christian civilization. It controls all monar- 
 chical States, with few exceptions, as well as republics, 
 which, with its aid, have gained new vitality. 
 
824] ORGANIZATION OF THE STATE 239 
 
 6. The representative assembly that is constituted 
 in this way is designated by the general name of par- 
 liament; it must be borne in mind, however, that in 
 most cases it was England's example that was followed, 
 and this led to the formation of a second legislative 
 department besides the elective parliament, called the 
 House of Lords, the Upper Chamber, etc.; which is 
 created according to entirely different principles, and 
 is intended to represent, now the nobility, now the 
 aristocracy of intellect or of wealth. It is a remnant 
 of the former class system but a remnant that is peculiar 
 in this, that only the highest classes have separate repre- 
 sentation. In contrast to the elective parliament it 
 is supposed to embody sometimes historical stability, 
 sometimes those special tendencies that are bound up 
 with wealth or with intellect. 
 
 7. An exposition of the law relating to parliamentary 
 government and its history is not the object of this 
 work. It will suffice to say here, that: 
 
 (a) The parliament belongs to those institutions by 
 means of which the system of the three powers is to be 
 carried out, legislation being kept distinctly separate from 
 the judicial office, and administration of the law. It 
 results that administration and justice are established on 
 a firm and fixed foundation, on the basis of laws, from 
 which there may be no departure. (Compare p. 229.) 
 
 (b) The parliament must contribute to the popu- 
 larization of the government in the manner indicated 
 on page 210 : it will tend to bridge the chasm between 
 the government and the governed. 
 
 (c) It is a means of educating the political under- 
 standing of the people, and of arousing and maintain- 
 ing interest in public affairs. 
 
 8. The parliament acquires special significance when 
 it is not only active in a legislative capacity, but inter- 
 
240 STATE LAW [Ch.VIII 
 
 venes directly or indirectly in administration also. This 
 is the case with the so-called parliamentary system, the 
 aim of which is that the highest officers, the ministers, 
 should be determined by the parliamentary majority; 
 so that the sovereign or president has not the power to 
 appoint them according to his own choice. This re- 
 striction is of such far-reaching importance because 
 the position of the ministers involves a tremendous 
 limitation of the royal power; wherefore it is particu- 
 larly incisive in its results, if the king or president can- 
 not appoint these all-important personages according 
 to his desire. The parliamentary system, therefore, still 
 further lessens the authority of the sovereign, without, 
 however, reducing it to a mere semblance; for it is still 
 impossible for any important State act to take place 
 without the king; and both the parliament and the 
 ministers must come to an agreement with the king if 
 anything whatever is to be accomplished. This is 
 otherwise, it is true, in republics, where the president 
 has only a suspensive veto. Note may also be made of 
 the king's or president's power to dissolve the parlia- 
 ment, which, however, involves the immediate occurrence 
 of a new election. But these elections may lead to a 
 complete transformation of the parliament, entailing 
 quite different conditions of majority rule, and hence 
 also the appointment of new ministers. 
 
 9. From the representative system, however, there 
 are always paths leading to the popular assembly; as, 
 in fact, it is not rare to find an inclination toward 
 earlier forms of development. The clearest embodi- 
 ment of this is the referendum, that is, the institution 
 according to which resolutions which have been framed 
 by the government and parliament together, and which 
 would therefore ordinarily become law, must still be 
 submitted to the vote of the people. In this case, the 
 
§25] THE ACTIVITY OF THE STATE 241 
 
 question is not discussed and decided, as in the popular 
 assembly, by the people in conclave, but all the actual 
 intellectual work and revision is done by the government 
 and parliament. But in this way, the law can be put 
 clearly before the people, who can then discuss it uncer- 
 emoniously, and make known the result by vote, which 
 can only be yes or no. The referendum is found in 
 republican countries, for instance in Switzerland (also 
 in the national constitution) and in some of the states in 
 the American Union (not in the federal constitution 
 of the United States). Not infrequently, however, 
 doubtful cases have been submitted to the nation's vote 
 without any such provision being found in the consti- 
 tution (the plebiscite). 
 
 SECOND MAIN DIVISION 
 THE ACTIVITY OF THE STATE 
 
 A. GENERAL REMARKS 
 
 SECTION XXV 
 
 1. The activity of the State is activity for the wel- 
 fare of the State, and the cultural interests of the nation ; 
 in fact, for the cultural interests of all humanity. 
 
 2. The activity of the State is divided into two very 
 different kinds of operations; operations for the pur- 
 pose of realizing and establishing the law, and other 
 operations; thus, the administration of justice and the 
 administration of the State. The difference is of inci- 
 sive importance for the whole manner of the State's 
 activity. Administration of the State is activity within 
 
242 STATE LAW [CH.VIII 
 
 the limits of the law; administration of justice is activity 
 in the service of the law. It follows that : 
 
 (a) The administration of the State must serve in 
 great measure the commands of practicability and eco- 
 nomic interests, observing only those restrictions that 
 are imposed by the legal order: the law is the frame 
 within which governmental policy is exerted. 
 
 (b) The administration of justice, on the other hand, 
 must obey solely the commands of the law, and need 
 only observe matters of practicability in as far as they 
 are an element in the formation of the law. 
 
 3. The administration of the State is not within the 
 scope of the philosophy of law, but belongs only to the 
 general philosophy of culture ; hence it need not concern 
 us further here. The following only need be remarked: 
 
 (a) It is not universally applicable principles that 
 determine which spheres the State will take into its own 
 hands, and which it will leave to other authorities. This 
 is governed by the principles of historical conditionality. 
 The State must intervene wherever it is to be assumed 
 that essential cultural tasks cannot be adequately 
 accomplished by the activity of individuals. As regards 
 the realization of the law, the State now controls prac- 
 tically the whole field. Administrative tasks, however, 
 are frequently left to individual activity. 
 
 (&) Whether and to what extent the State may inter- 
 fere with the activity of the individual is also a matter 
 of historical conditionality. The doctrine of the rights 
 of mankind is a doctrine of definite stages of culture, not 
 a doctrine of permanent law. 
 
 4. As regards the administration of the State I would 
 refer in addition to "Die Einfiihrung in die Rechtswis- 
 senschaft" (3d edition, p. 147 f.) 
 
§26] LEGAL PROCEDURE 243 
 
 B. THE ADMINISTRATION OF JUSTICE 
 
 SECTION XXVI 
 
 I. LEGAL PROCEDURE 
 
 1 . The Legal Procedure of the Civil Law 
 
 (a) Fundamental Ideas. 
 
 1. The manner in which legal procedure grew out 
 of peaceable regulation has already been explained (p. 
 63). The realization of the law is no longer the affair 
 of the individual, but solely that of the State ; and it 
 is only through the mediation of the State that the 
 individual can obtain his rights — his rights even in 
 the face of others' opposition. The legal hindrances 
 to which nature gives rise do not belong here; it is left 
 to the individual to overcome them, and only in accor- 
 dance with the varying principles of the police order 
 can he appeal to the State to aid him in this connec- 
 tion; the opposition of another person, however, can 
 only be overcome legally with the help of the State, 
 unless it be permissible to overcome it in accordance 
 with the principles of possession or necessary defense 
 which were discussed on page 64. 
 
 This realization of the law through the State avoids 
 all those imperfections which self-help involves. 
 
 (o) The State can obtain a correcter perception 
 of a right in question than can the individual, who more- 
 over is often blinded and prejudiced. 
 
 (6) The State is always the stronger when it is a 
 question of overcoming an individual, and it is no 
 longer a matter of importance which of the two parties 
 
244 STATE LAW [Ch.VIII 
 
 at variance is mightier; the State aids the weakest 
 man and overcomes the strongest if the latter is in the 
 wrong. 
 
 (c) The State is free from bUnd passions, and can 
 devote itself unreservedly to the aims of the law; while 
 the individual, in consequence of his passionate inten- 
 tions, will act contrary to the law a hundred times, the 
 State, in every single case, will be concerned only with 
 the realization of the right. 
 
 2. This process of realization, however, produces 
 still further cultural phenomena. The State will have 
 to examine into who is right; for it will not interfere 
 arbitrarily and blindly. And this leads to another im- 
 portant function which, contrary to the usual course, 
 made itself felt even before the State realization of the 
 law; namely, when individuals agreed to arbitration, 
 and declared the decision thus given to be final. 
 
 If the State or an authority in arbitration asserts 
 that A is in the right and B is in the wrong, the imme- 
 diate consequence will be that the realization of the 
 law conforms to this. If it does not go further, an im- 
 portant evil is not removed which gnaws at the heart 
 of culture, and threatens to undermine the most earnest 
 economic endeavors; this evil is the insecurity of legal 
 relations. It is not alone the incompleteness of the 
 realization of the law that hampers and hinders man- 
 kind, but the whole uncertainty of the condition of the 
 law. Whoever desires to act in legal commerce must 
 be able to build on a sure foundation, and especially 
 to see his way clearly in regard to matters of property; 
 if, in this connection, difficulties and discord arise, there 
 must be a given means of settling them; and it must 
 be such that it is known, once for all, what the right is. 
 The procedure which in itself strives to ascertain the 
 right and the wrong will gradually gain control of the 
 
§26] LEGAL PROCEDURE 245 
 
 means of their establishment, in order to meet this 
 need also; not at once, for the law will long restrict 
 itself to the realization of the law, and will use the 
 method of legal examination only for this purpose. It 
 is true, however, that even at this point, it is frequently 
 attempted to attain the further end indirectly. It is 
 sought to bring about the desired security by compel- 
 ling the parties, after the decision, to acknowledge it 
 by an express legal act, and to submit to it by a legally 
 binding declaration; thus it was in old Germanic law. 
 From here, however, it is only a step to a further con- 
 ception: the State decision is binding and determinative 
 not only for the realization of the law, but altogether; it 
 can no longer be questioned. This is brought about 
 by the following legal device: the public authority of 
 the State is mightier than private law; the State can 
 not only realize law, but create law. If the State is 
 given legislative power, it must also be given the power, 
 in individual cases, through its organs, by virtue of its 
 authoritative utterance, to abrogate the law: the State 
 gives to the judge the key of the law; he can bind and 
 dissolve the law. 
 
 3. Thereby the insecurity of the legal situation is 
 finally removed, and it is now known what is right: 
 for, whether the decision be right or not, yet from now 
 on it is valid. It is either right, in which case everything 
 is in order, or it is wrong, and then a corresponding 
 displacement of the law occurs. This may appear to 
 be a defect; for it is lamentable if, in consequence of 
 judicial error, some one loses his rights, or if, for in- 
 stance, some one who does not owe another anything, 
 is suddenly made his debtor to the extent of 100,000 
 marks by judicial error; but for this single error, the 
 valuable asset of legal security compensates, and it is 
 worth so much that the unavoidable evils must be put 
 
246 STATE LAW [Ch.VIII 
 
 up with. With the attainment of legal security, human 
 culture makes a considerable stride. 
 
 4. The principle of the final establishment of the 
 law is indispensable, but it may exist even if certain 
 modifications enter into it; inasmuch as the sphere 
 of these exceptions is so clearly described that the rule 
 remains unaffected. Now there are a number of cases 
 in which the substantive right is so far outraged by the 
 decision made that a departure from the rule appears 
 to be advisable. Thus, in particular, if in the proce- 
 dure of decision the judge has made grave mistakes, 
 or if there were serious defects in the trial: especially 
 if the decision was determined by a crime, false testi- 
 mony, or perjury, or if the trial was incomplete owing 
 to the impossibility of obtaining certain evidence. 
 
 In this connection, we speak of "restitution," and it has 
 been carried out in various ways in our cultural systems 
 of law. The consequence is, that the decision is over- 
 thrown, and it becomes possible to put another in its 
 place. 
 
 5. Culture only requires that a legal certainty shall 
 finally arise, not that it shall be achieved at the first 
 attempt. At this point the institution of the appeal 
 developed ; that is, the possibility following the decision 
 of one court, to obtain a second or third decision in 
 such a way that the former decision is dissolved and 
 another takes its place. The manner in which this 
 institution has developed varies greatly, and rests on 
 multifarious legal historical motives which must be else- 
 where presented. It will suffice for our purpose here to 
 say, that one of the main factors was chieftainry and 
 the hierarchy of powers that it produced. The chief 
 desired if possible to have the last word, and it was 
 naturally flattering to his sense and desire of power if 
 he thus succeeded in concentrating the administration 
 
§26] LEGAL PROCEDURE 247 
 
 of justice. The legal character of the appeal, however, 
 consists in this, that the first decision is conditionally 
 given, and the reversal takes place as soon as a higher 
 instance decides differently. 
 
 6. Legal procedure as a realization of justice has 
 indeed its disadvantages and defects. The chief dis- 
 advantage is the unavoidable delay that it involves. 
 Instead of a man's being able to obtain his rights imme- 
 diately and directly, he must choose the circuitous route 
 and apply to the State; and the judicial investigation 
 of the matter may take considerable time. Instead of a 
 rapid accomplishment of justice, we have a slow realiza- 
 tion of justice, which often is almost equivalent to a 
 denial of it. What advantages does the prospect of a 
 just decision and subsequent powerful measures of 
 realization offer, if I must submit to a delay of months 
 and years, until perhaps the realization becomes merely 
 theoretical, and the defendant has sunk so low finan- 
 cially that nothing can be had from him? 
 
 Our modem law of legal procedure is still fighting against 
 this evil. We are endeavoring to reconcile the appar- 
 ently irreconcilable contradiction that, on the one 
 hand, the realization of justice should be swift and 
 unhampered, and, on the other, that a just decision pre- 
 supposes a thorough examination of the controversy. 
 
 The common civil procedure did not solve this diffi- 
 culty; at least not in theory. It simply made the 
 realization of justice dependent on the establishment of 
 the law; so that it was necessary first to establish the 
 law before it was possible to proceed to the realization of 
 justice. The administration of justice did indeed seek to aid 
 in many ways, but without any thoroughgoing principle. 
 The great advance in modem procedure lies in this, that 
 the realization of justice and the establishment of the 
 law are separated; so that it is possible to proceed to 
 
248 STATE LAW [Ch.VIII 
 
 the realization of justice before the determinative estab- 
 Ushment of the law has taken place. This is done by 
 means of the preliminary enforcible judgment (vorldufig 
 vollstreckbares Urteil), that is to say, that the judg- 
 ment can be compulsorily realized even before its legal 
 validity is established. This involves the disadvantage 
 that the realization of justice sometimes goes astray, 
 and leads to results that are at variance with true 
 justice and with its certainty for the future. Momen- 
 tous as this evil is, it must yet be accepted for the sake 
 of the advantage that is gained if the plaintiff, on the 
 basis of preliminary examinations or other circumstances 
 that make his right probable, attains his end speedily. 
 
 The difficulty must then be solved in this way: if the 
 realization of justice leads to results which do not agree 
 with the future security of justice, an adjustment must 
 take place; whatever the complainant has wrongfully 
 acquired, he must restore, and it may be that he will 
 also have to give the other party compensation. 
 
 7. But even with this solution there still remains 
 something lacking; for at least until a provisional judg- 
 ment is attained, the complainant's right is still unreal- 
 ized. Three methods are employed to adjust this 
 disagreement : 
 
 (a) The rapid forms of procedure, arrest, temporary 
 disposition {Verfiigung) . 
 
 (b) The enforcible document: the debtor acknowl- 
 edges his debt in an unquestionable declaration and the 
 creditor is given the privilege, on the ground of the 
 writing, to collect the debt — for the present, with a 
 reservation of future settlement. 
 
 (c) The delay in time is balanced in the following 
 way : the person against whom judgment is finally given 
 is treated as if the judgment had been pronounced at the 
 beginning of the proceeding, and as if the object which he 
 
§26] LEGAL PROCEDURE 249 
 
 has to deliver had been left with him since then only 
 as a loan. If, for instance, after six months, the judg- 
 ment is against the defendent for the sum of 1,000 
 marks, it is to be regarded as if the judgment against 
 him had been given immediately, and the sum had 
 remained as a loan. He would not, indeed, have been 
 allowed to retain it without interest; whence follows 
 the necessity of interest during the procedural period of 
 delay. The matter is treated in the same way if, after 
 six months, the defendant is ordered to deliver up a 
 thing; he is regarded as if he had been so ordered at 
 the outset, and he had been allowed to retain the thing 
 to administer it for the complainant; this gives rise to 
 the duty of restoring the proceeds and the duty of 
 handling such a thing with care. 
 
 It would, however, be a false interpretation of the 
 idea if one should say that the judge's attitude must be 
 as if he had given the judgment at the very beginning 
 of the trial ;•* according to this view, the defendant would 
 have to be ordered to deliver the thing up even if it 
 had perished by chance, in the course of the proceed- 
 ing. The correct view is rather this: the judge must 
 indeed judge according to the condition of the thing at 
 the time of the judgment, but he must then so turn the 
 matter as if the judgment had been pronounced at the 
 beginning of the proceedings, and the defendant in the 
 meantime had been merely the guardian and adminis- 
 trator of the interests at issue. 
 
 8. In this way, of course, absolute perfection can 
 never arise ; but the policy of the law, like every policy, 
 is the achievement of the possible, the attainment of 
 what is attainable under the incompleteness of human 
 
 " This was the interpretation that Roman law maintained for a long 
 time. In this instance, as in many other cases, Roman law was grop- 
 ing in the direction of the proper view. 
 
250 STATE LAW [Ch.VIII 
 
 conditions, and of what best accords with its final 
 aims. 
 
 {b) Religion and Reason in Procedure. 
 
 1. Peaceable regulation is principally furthered by 
 the worship of the divinity. The divinity is often the 
 goddess of peace; she resists force and hates disputes 
 and quarreling. So it happens that the efforts to 
 obtain the settlement of legal claims and disputes with- 
 out violence cling about divine service, and that the 
 law of procedure is divine and ecclesiastical, before it 
 becomes secular. The further exposition of this belongs 
 to the universal history of the law ; but here the part that 
 worship played in the development of procedure must 
 be explained. 
 
 2. Already on the plane of pure legal order, the 
 priesthood attains great eminence; for even the law is 
 not a human but a divine law. The creation of the law 
 is a formation of the conditions as they conform and are 
 agreeable to the divinity; and the exercise of the law 
 corresponds to the divine will — at least as soon as 
 religion has advanced to the point where many gods are 
 merged into one unified divine authority. 
 
 Hence it is comprehensible that even at that time 
 the law is made mainly by the priests, and that they 
 endeavor to develop the divine will in all directions. 
 
 3. But this activity will become still more pro- 
 nounced when society reaches a basis of peaceable 
 adjustment, and when it is a question of opposing the 
 individual assertion of the law. Here, of course, people 
 will turn first to the priesthood when arbitration courts 
 are desired; for they have the best knowledge of the 
 law. But another reason is also combined with this. 
 The priesthood represents the highest power ; it possesses 
 the authority to curse and expel the individual who 
 
§26] LEGAL PROCEDURE 251 
 
 resists. This is a power that exceeds all others, and 
 extends into eternity. Thus, of course, the intervention 
 of the priesthood cannot be avoided, when quarrels and 
 disputes arise, and it will fall more and more to the lot 
 of the priests to solve legal questions, whether it be a 
 matter of the realization of justice or the establishment 
 of the law. 
 
 4. Moreover, the people of that time believed in the 
 constant activity and intervention of the divinity for 
 the individual; they assumed that the divine powers 
 would never forsake the innocent; that they would not 
 permit the wrong to triumph. Such a man, therefore, 
 believed that the question of right and wrong was uncon- 
 ditionally solved with absolute certainty by divine 
 intervention; so that all doubt disappeared, and man 
 bowed to the infallible divine decision. This of course 
 strengthened the priestly procedure; for it was just the 
 priesthood that acted as the mediator in the individual's 
 relation to the divinity, and appealed to him to reveal 
 the celestial decision. Thus arose what is called the 
 judgment of god (GoUesurteil) . 
 
 5. The judgment of god is not unique. In other 
 matters also the priesthood acted as the medium through 
 which the divinity spoke; thus, for instance, in impor- 
 tant State affairs, when responsible decisions were to 
 be made, enlightenment was sought of the divinity; 
 and it was supposed that the divine power could reveal 
 to men the future. Thus arises the augury, that is, the 
 totality of means used to discover the mystery of the 
 future. It did not appear to the same extent in all the 
 nations, but was pronounced among the star-interpreting 
 Babylonians, the Etruscans, and consequently among 
 the Romans ; also among the Chinese. 
 
 Just as the future was spied out in this way, so too 
 were the present and the past ; the divinity said what was 
 
252 STATE LAW [Ch.VIII 
 
 right; it announced the circumstances that were deter- 
 minative for justice; especially who had committed an 
 evil deed and who was guilty of some crime was learned 
 in this way. 
 
 6. Thus an abundance of divine judgments arose. 
 They were, first, those that were closely connected with 
 the augury; like the judgment by lot or the seer's 
 power, the priest believing that in some manner he could 
 discover the evil doer. Second, there were the divine 
 judgments connected with the worship of the dead; it 
 being supposed that a murdered man would point out 
 his murderer, a belief which appears in various forms in 
 the life of the nations: the wounds bleed if the mur- 
 derer comes near, the bearers of the body suddenly 
 become paralyzed at sight of the murderer, etc. Then 
 there- were the divine judgments proper: the accused, 
 or sometimes the accuser, or both, were placed in rela- 
 tion to some material object so that this deified object 
 might in some way make known their guilt or inno- 
 cence; thus, for instance, there were the ordeals by fire, 
 by water, and many others. 
 
 It is unjust to suppose that lying and deception, or 
 even mere chance, played a large part in these judg- 
 ments. There was certainly no intentional deception 
 until all these institutions reached a state of decay, 
 and the priesthood began a rapid decline. But even 
 the effect of chance was limited ; for frequently the ele- 
 ments of reason were also involved. The consciousness 
 of guilt or innocence was an important factor in these 
 tests; they assumed more and more the character of 
 allowing the psychic emotions of the suspected person to 
 appear, when he was confronted with the deified things 
 of nature. Thus, for instance, the fact that the accused 
 trembled, or in some other way expressed inward 
 excitement, might be interpreted as arising from the 
 
§26] LEGAL PROCEDURE 253 
 
 consciousness of guilt. As regards prophetic vision and 
 the belief in the power of the dead, it may also be assumed 
 that the reasonable motives that led to the conviction 
 that one or another was guilty, so overcame the priests 
 and the bearers of the dead that the cultural phenomena 
 appeared just when consideration of the facts made one 
 or another seem guilty; for it is a well-known psychic 
 experience that such convictions affect our imaginative 
 activity beneath the surface of our consciousness, and 
 often we are as if possessed by reasonable ideas that grow 
 up in us more or less unconsciously. 
 
 But, even if we must assume that the element of 
 chance was large — and this can scarcely be doubted — 
 yet, it must be taken into consideration that the sacri- 
 fice of the individual secured the peace of society; for 
 the belief in the correctness of the divine judgment was 
 so great that even the innocent man believed himself 
 guilty, and thought that he had been caused to murder 
 by some evil magic spell, or had attracted murderous 
 spirits to himself. 
 
 Universal history often requires the individual to be 
 thus sacrificed: the iron trdad of progress tramples 
 thousands underfoot. This is a terrible phenomenon 
 which we must moderate and ameliorate, as far as pos- 
 sible, in the course of the development of culture. But 
 here we must simply accept the ways of Divine Provi- 
 dence, in the consciousness that thus the progress of 
 the world is accomplished; and we must realize that 
 our modem criminal procedure also demands thousands 
 of innocent victims, so liable to error are our methods of 
 proof and conviction. 
 
 7. Procedure must advance beyond this stage, and 
 become a procedure of reason, as soon as humanity ceases 
 to believe in the basis of the earlier procedure ; that is, as 
 soon as men no longer assume that the divinity intervenes 
 
254 STATE LAW [Ch.vIII 
 
 in the government of the world for every individual, and 
 gives him a good or bad testimonial. When once this 
 belief has ceased, procedure must be along entirely 
 different lines: the essential thing is, not that it should 
 actually lead to objectively right results, but that society 
 should recognize the dominion of the law in the adminis- 
 tration of justice. Hence, as long as people believe in a 
 divine procedure, it can be retained ; but when once this 
 belief is shaken, procedure must be built up on another 
 foundation. 
 
 This cannot be done, however, until education has 
 advanced so far that it is possible to obtain fairly sound 
 results with the procedure of reason; and this is only 
 possible if judges possess a certain degree of insight, if 
 the impartiality of those who find the judgment is beyond 
 doubt, and also if the conditions of life are such that it is 
 possible, in the main, to reach a reasonable establish- 
 ment of the necessary facts. 
 
 Until man has reached this point, the religious method 
 of proof will continue to live in certain offshoots. It does 
 not die easily, and can still be traced even today in cer- 
 tain institutions. 
 
 8. One of its outgrowths, for instance, is the oath, 
 which means in reality that a man curses himself in 
 the expectation of drawing down upon himself the curse 
 of the divinity should he be in the wrong. This institu- 
 tion can maintain itself for a long time; for even if men 
 no longer believe that the curse of God can be brought 
 down upon us by the will and power of men, yet the 
 belief that it is possible for a man, by appealing to 
 the divinity, to place himself under the divine power of 
 vengeance, is not so remote even from the man of 
 today. In addition, compurgators were called; origi- 
 nally they were relatives; later,, any persons of untar- 
 nished reputation. 
 
§26] LEGAL PROCEDURE 255 
 
 The institution of divine judgment had one very evil 
 result — the torture ^ — -one of the worst institutions 
 that the erring human mind ever devised. The original 
 idea was that, just as the divine judgment leaves the 
 innocent persons untouched, so too they will be able to 
 bear torture without succumbing. But even after this 
 idea had gradually declined, torture still remained as 
 a means of extorting testimony which was considered 
 necessary, whether it was to extract a confession, or a 
 statement, or to discover where a treasure was buried or 
 the identity of accessories and confederates. Also this 
 institution, eating like a canker into mankind, had to 
 be overcome before modem procedure could arise. 
 
 9. In the procedure of today, however, we have first 
 of all the far-reaching division between civil and criminal 
 procedure. In earlier times there was no conception of 
 this difference. Anyone with a grievance simply pre- 
 sented himself before the judge, whether he demanded 
 the punishment of another, desired to have his property 
 returned, or was anxious in one way or another to have 
 some disagreement settled. Only gradually, after the 
 State had properly grasped the criminal idea, was the 
 great difference perceived in the activity of the State, 
 whether it prosecuted an evil doer in the name of society, 
 or whether it made it possible for the individual to estab- 
 lish and realize his rights. 
 
 (aa) Courts 
 
 1. Courts were originally either priestly courts, popu- 
 lar courts, or chieftains' courts. The priestly courts 
 made an effort in favor of scientific form, and it is not by 
 chance that the science of the law was first developed 
 mainly in religious colleges. Sometimes the chieftains' 
 courts imitated the priestly courts, and possibly 
 competed with them as regards legal education. The 
 
256 STATE LAW [Ch.VIII 
 
 popular courts, on the other hand, always maintained a 
 certain degree of informality, and their administration of 
 the law was more or less simple and naifve, proceeding 
 from the midst of the population that practised the law, 
 without careful working out, and more unconsciously 
 than on the basis of principle. Neverthless, such courts 
 sometimes rose to considerable eminence under the 
 influence of certain unusually learned persons : take, for 
 instance, the office of "law-man" in the Scandinavian law. 
 Sometimes, too, the popular court developed into a court 
 composed of persons from among the people who were 
 considered to have special knowledge of the laws; and 
 thus the popular court became an assessors' court 
 {Schoffengericht) . 
 
 2. With the growth of the priestly and chieftains' 
 courts, in contrast to the popular courts, a law as under- 
 stood by jurists (Juristenrechi) was developed as against 
 the popular law (Volksrechf) . Both belonged to cus- 
 tomary law {Gewohnheitsreckt), but the juristic law 
 grasped the matter with a logically trained understand- 
 ing, the popular law with an instinctive general view of 
 life (Weltanschauung). 
 
 3. As the development of the law is partly teleo- 
 logical, partly logical, no one kind of court will be the 
 only right one ; the proper court can only be formed by a 
 combination of the popular court and the technical 
 court. Both can contribute to the advance of the 
 administration of justice. T^echnical law has an easily 
 understood tendency toward exaggerated logic, unwhole- 
 some elaboration, sophistry, and quibbling. Popular 
 law, on the contrary, is inclined to lose its balance, and 
 to be so dominated by practical considerations that 
 it goes to pieces. It is also in danger of losing itself in 
 circumstantials, and since in it a firm core is lacking, 
 to become the shuttlecock of momentary moods and 
 passions. 
 
§26] LEGAL PROCEDURE 257 
 
 4. We are right today in aiming at the estabUsh- 
 ment of both technical and popular courts, and in our 
 endeavors to bring before the popular courts especially 
 the disputes of the classes among themselves, and thus 
 to reconcile class contradictions. Matters in which 
 logical training is of more importance than the view of 
 life are suited to the technical courts and to these only. 
 
 (c) The Philosophy of Legal Procedure. 
 
 L The philosophy of civil procedure must bear in 
 mind that the latter is a process for ascertaining the 
 truth and realizing the law. Hence it must command 
 all the means that serve to ascertain the truth; this 
 procedure, to be sure, is only supposed to realize the 
 right that the complainant wishes to have realized, and 
 it is also true that the defendant may give in, and 
 acknowledge a non-existent right. But this does not 
 mean that in respect to the inquiry made by the judge, 
 the parties have a right of disposition in the case; it only 
 means that the judge is bound by the limits of that par- 
 ticular right, the realization of which the complainant 
 desires; and further that the legally determinative dis- 
 position of the defendant may create a new legal basis 
 between the parties, so that there need be no further dis- 
 pute about the old right. On the other hand, within 
 these limits, the judge must ascertain the full truth, and 
 any impairment of his free examination is entirely 
 inadmissible, and also unworthy of the judicial office. 
 
 2. If, notwithstanding, the judge, in certain respects, 
 is dependent on the parties, this is the consequence of 
 human conditions, and as such must be borne, but not 
 extended beyond what is immediately necessary. Thus, 
 it is particularly fitting if, at least in matters relating to 
 property, the judge follows the corroborative declara- 
 tion of the parties about facts. This and other trial 
 
258 STATE LAW [ Ch. VIII 
 
 maxims (Verhandlungsmaxime) , so called since the time 
 of the exponents of Natural Law " in the nineteenth 
 century, relate to the principle of usefulness, and are 
 connected with the fact that in civil matters there is 
 little possibility of the judge getting beyond the parties 
 to the truth; although it must always be allowable for 
 the judge to call and examine witnesses regardless of 
 the parties. 
 
 3. The philosophy of legal procedure also involves 
 the following: everyone must be given the opportunity, 
 though with reservations and under regulations, of 
 appealing to the judge, thus producing the legal relation 
 calling for procedure. This may lead to abuses which, 
 if they become frequent, may be corrected by the rules 
 of procedure in one manner or another. But, in gen- 
 eral, it is not possible to dispense with the rule that 
 anyone is competent to bring an action, and, especially, 
 the assumption is entirely inadmissible that a man 
 who is in the right occupies a different procedural posi- 
 tion from one who is in the wrong; being right or wrong 
 can only influence the content of the judicial judgment, 
 but cannot alter the person's position as to his proce- 
 dural rights. All logical wranglings that have been 
 indulged in regard to this matter must be rejected. 
 Procedure is an institution for the purpose of realizing 
 the law ; and this institution must operate with certain 
 means ; and one of these is the principle that, apart from 
 any consideration of right or wrong, everyone can 
 obtain a hearing before the judge, and can bring an 
 action. A metaphysic of procedure that assumes that 
 the entitled subject has a so-called claim to legal pro- 
 tection is wrong from the beginning. The correct 
 fundamental idea is rather that of the separation of 
 civil procedure (Zivilprozess) from civil law (Zivilrecht). 
 
 " "Arch. f. Rechtsphilos." I, p. 503 f. 
 
S26] ' LEGAL PROCEDURE 259 
 
 The realization and the establishment of the civil law 
 is the end at which the State aims, when it accords the 
 right of procedure to an unentitled as well as to an 
 entitled subject. 
 
 4. If we go a step farther, in order to characterize 
 the right of every individual to bring an action, we 
 must say that it belongs to the class of rights in one's 
 own person (Personlichkeitsrecht) ; it is the personality 
 that asserts himself in the action. 
 
 As regards execution {Vollstreckung) , a particular 
 factor applies, in that not everyone by merely bringing 
 an action can resort to execution ; but only one who has 
 a so-called title of execution (Vollstreckungstitel) (a 
 judgment and such like). 
 
 5. This personal right {Personlichkeitsrecht) gives 
 rise, by reason of a definite procedural assertion of the 
 complainant, to a legal relation between the complainant 
 and the defendant, the legal relation of civil procedure. 
 
 This has frequently been misunderstood, and wrong 
 ideas have been accepted which has made the matter 
 somewhat obscure. 
 
 It has been said that every person has a claim against 
 the State to be heard by the State in his procedural 
 assertions, and to bring an action against anyone. This 
 rests on an entire misunderstanding of the nature of a 
 claim (discussed on page 84). Not everything that I 
 may do, can be included in the idea of a claim; not 
 even if thereby I am protected from the interference of 
 others. It is a claim only if a special relation exists on 
 the basis of which a certain activity can be demanded. 
 But, if it is a question of a general right which must be 
 respected by everybody, especially by the State, the 
 idea of a claim is entirely unsuitable; for the necessity 
 that the person of the complainant should be recognized 
 through the judge rests on the right of personality; 
 
260 STATE LAW • [Ch.VIII 
 
 just as the necessity that property should be recognized 
 rests on the nature of ownership. 
 
 6. As regards the form of procedure, it aims mainly 
 at being practical. Yet here, too, it is possible to explain 
 certain fundamental ideas which recur in the legal systems 
 of our people. 
 
 (a) There is a question whether procedure is to be 
 treated as divisable, or as a unity: the former in this 
 way, that the procedure ceases with the term and must 
 be recalled to life by a new act, until finally the object 
 is attained. Thus, the progress of the case is from 
 judgment to judgment, and through a series of judgments 
 — the procedure being constantly closed and reopened. 
 
 In contrast to this, there is the notion of procedural 
 unity; so that the different terms are only parts of one 
 great whole. The result is that a final judgment is not 
 given till the end ; orders being entered in the meantime, 
 which generally can be changed by the courts; and that 
 judgments before the close of the procedure {Zwischenur- 
 teile) exist only as exceptions, where questions are 
 involved, whose ultimate settlement is of urgent interest 
 to both parties. 
 
 Modern law tends towards the second view, and that 
 is the one accepted by German legislation. It has the 
 advantage, that in all inquiries into the case, the latest 
 developments are at the judge's command, and he is 
 thus able from examination to examination to get nearer 
 to the truth; whereas, otherwise, he is bound by earlier 
 judgments and cannot make use of better knowledge. 
 In another respect, also, this method is to be preferred, 
 for by it the examination is better apprehended, and 
 by unification a better result is made possible. 
 
 (b) Adversarial procedure and inquisitorial proce- 
 dure (Partei- und Untersuchungs-prozess) are two further 
 poles in the treatment of this subject. Adversarial (or 
 
526] LEGAL PROCEDURE 261 
 
 party) procedure is an intellectual conflict of two oppos- 
 ing persons, and in their contest they bring forward 
 their reasons and resources. In inquisitorial procedure, 
 the judge alone is the determinative agency, and the 
 others involved are solely participants who can take part 
 in one way or another, but cannot oppose one another nor 
 control the course of the procedure. Each system has 
 its advantages. In civil procedure, party-process is gen- 
 erally to be preferred; because everything bearing on 
 the matter is best brought to the surface, just by the 
 conflict between two persons with opposing interests. 
 This involves, however, the considerable inconvenience, 
 that a 'decision is brought about only between two per- 
 sons, wherefore, when a number of persons are affected, 
 inquisitorial procedure proves to be especially practical. 
 A combination of the two methods is seen in the party 
 process with a number of persons on one side, where each 
 may take part in the proceedings. 
 
 Our civil procedure is generally party procedure; yet 
 occasional cases are not lacking in which inquisitorial 
 procedure is used. 
 
 (c) The form of the civil procedure may be governed 
 by the principle that a decision can only follow when 
 both sides participate. This rests on the principle of 
 combat, which requires two combatants; for even if the 
 defendant surrenders at once, he must yet be present 
 in order to say so. Many systems of law start from this 
 point of view, at the same time regarding it as the 
 sacred duty of the citizen to take part in the process, 
 and not to absent himself. This is connected with the 
 whole system of popular assembly, where it is customary 
 in the development of the relations of society to meet 
 in certain public unions (as is still the case in the African 
 palaver, etc., and as formerly, in the German national 
 assembly). There, both complainant and defendant are 
 
262 STATE LAW [Ch.VIII 
 
 present; and it follows, as a matter of course, that 
 everyone who is called in this way must take part in the 
 procedure, if he wishes to be considered a legal member 
 of the national community. Whoever does not do so is 
 expelled from the community altogether. 
 
 This principle is later replaced by another: the 
 process does, indeed, remain a conflict; but just as the 
 defendant may capitulate, so too he may remain away 
 and his absence is considered equivalent to a declara- 
 tion that he is defeated and that he concurs in his defeat. 
 According to a third system, if the defendant does not 
 appear he neither capitulates nor declares himself 
 defeated, but he does not meet the attack of the com- 
 plainant with a counter-attack. 
 
 The latter is the method represented in most modern 
 cultural systems of law. In this way, justice is best 
 done to the complainant without declaring that the 
 defendant's absence is a complete acknowledgment, 
 which often does not agree with the facts. On the other 
 hand, it is comprehensible that in such a case the 
 defendant's failure to appear should be construed, as 
 far as possible, in favor of the complainant. Never- 
 theless, it is going too far if in all cases the facts of the 
 complaint are regarded as acknowledged, as in German 
 civil procedure. 
 
 For the rest, the procedure pertaining to default 
 {Versdumungsverfahren) does not belong to the gen- 
 eral philosophy of law, but to the special legal policy 
 of the time and the nation; hence it need not be further 
 discussed here. 
 
 {d) Proof Founded on Reason. 
 
 1. If proof founded on reason {Vernunfibeweis) is 
 accepted, care must be taken that means of proof be not 
 lacking. A great discovery which considerably advanced 
 
§26] LEGAL PROCEDURE 263 
 
 procedure is the document ( Urkunde), that is, the 
 means of putting a declaration of thoughts or will in an 
 unchangeable form, to petrify them so that they are 
 secured for all ages. The document developed with the 
 art of writing, as a support for the memory, as a means 
 of intercourse between those who cannot associate with 
 one another personally, and finally as a means of estab- 
 lishing what has once been said, for future evidence. 
 The document, it is true, is therefore only essential for 
 legal dealing which is carried on principally according 
 to the intention of men, not for illegal commerce; as 
 whoever is engaged in illegalities is, on the contrary, 
 anxious to obliterate the traces of his deeds. In this 
 case, other expedients must be sought. Human activity 
 is here replaced by nature, which can only be partly 
 mastered by man. The farther we penetrate in the 
 knowledge of nature, the less will the culprit be able to 
 escape our investigations; for a number of natural events 
 will arise from the deed which the perpetrator cannot 
 avoid, and which finally betray him. In this respect 
 the inquiring mind will find ever new forces at its 
 disposal. (Compare p. 292.) 
 
 2. Another aid is testimony, which is important for 
 illegal as well as for legal acts, because in both cases, 
 things are perceived which serve to retain past events. 
 In legal dealing testimony comes under consideration 
 in a special way. Just as the document can be used as 
 a means of establishment of facts, so too can testimony 
 be used, witnesses of a transaction being called for this 
 purpose. This calling of witnesses has a wide historical 
 background which must be dealt with in the universal 
 history of law. 
 
 It is of the greatest importance that the persons so 
 called should possess the ability to perceive to the full 
 extent, that they should be able to retain what they 
 
264 STATE LAW [Ch.VIII 
 
 have perceived, and that they should be desirous of 
 recounting it correctly. 
 
 3. In all these directions the means of proof must not 
 be overestimated; and, in particular, it leads to com- 
 plete injustice if the psychology of testimony is not 
 grasped ; and if it is not recognized that perceptions often 
 produce false impressions, so that what is entirely incor- 
 rect is not rarely conscientiously asserted and even 
 sworn to. In this respect, tremendous errors have been 
 made, and the injustice that they have wrought is no 
 slighter than the injustice of the time when the ordeal 
 was depended upon. Just as in earlier periods people 
 finally became free from their belief in the efhcacy of 
 an appeal to heaven, in their effort to advance toward 
 truth and reason, so today we must be on our guard 
 against blind confidence in testimony and, by carefully 
 and psychologically examining it, seek to get at the 
 truth. Testimony is merely the raw material out of 
 which the judge must construct the truth. 
 
 On the other hand, testimony has this advantage over 
 inanimate means of proof, that witnesses can be interro- 
 gated and urged to explain doubtful points in their 
 testimony. Hence, it is of particular importance that 
 the parties concerned should be present, and should be 
 permitted to question the witnesses. 
 
 (e) Execution and Bankruptcy. 
 
 1. The realization of justice also seeks to bring about 
 the result that the law desires without any effort on the 
 part of the defendant. It is best arranged if it — 
 
 (c) operates firmly and surely; 
 
 (b) is able to realize the rights of the complainant in 
 all its particulars ; 
 
 (c) is at the same time humane, and does not sacri- 
 fice the man to the law. 
 
S261 LEGAL PROCEDURE 265 
 
 2. There are cases in which the participation of the 
 defendant cannot be dispensed with; the law is then 
 obUged to act upon his will. 
 
 3. Whether the execution affects only property or 
 also the person varies in history. Witli us the former 
 is the case, but for centuries the latter was usual and 
 predominant. 
 
 i. The method of converting the property into 
 money (with the aid of the judicial pledge right) belongs 
 to the technic of the law. 
 
 5. Bankruptcy is an institution of settlement, 
 whereby the harshness of chance is modified, and by 
 means of which it is intended to bring about the result, 
 that interests which are equal in the law shall receive 
 as far as possible equal attention and development. Two 
 points of view in particular come under consideration. 
 The plurality of creditors who proceed against the 
 debtor would otherwise have to depend on a single exe- 
 cution (Einzelvollstreckung). This single execution is 
 thoroughly justified if there is enough property to allow 
 of every creditor's gaining full satisfaction; hence it is 
 also thoroughly justifiable if, in this matter, German pro- 
 cedure starts from the system of pledge rights, and 
 gives tlie first pledgee the preference before his suc- 
 cessors: then a creditor can fall upon one or another 
 piece of the debtor's property in order to gain his satis- 
 faction from it. But if the debtor's financial condition 
 is so bad that not all the creditors can be fully satisfied, 
 then this system leads to the evil result that one creditor 
 will be completely covered, and another will obtain 
 nothing; and, further, that in this respect, it is solely 
 chance that decides, and whoever comes first claims the 
 property. There may be a certain justification for this, 
 inasmuch as in all systems of law diligence in following 
 up a claim plays a part. But it is not just that this 
 circumstance should have so great an effect; for such 
 
266 STATE LAW [Ch. VIII 
 
 diligence is often synonymous with ruthlessness and 
 harshness, and it certainly cannot be required of every- 
 one that he be a shrewd business man. 
 
 6. Hence, in such cases, it is justifiable that the 
 preference should not be given to the first comer; but 
 that the system of equality should decide that all the 
 creditors should stand equal, should be subject to the 
 same advantages and disadvantages, and that if there 
 is a loss, it should be borne by all alike ; in other words, 
 that not the principle of the pledge right but that of 
 sequestration (Beschlagsrechtsprinzip) should apply. 
 
 This principle is the fundamental basis of bankruptcy 
 and the one to which this institution chiefly owes its 
 origin. 
 
 7. A second point of view is the following. The 
 objects that constitute the property usually stand in 
 such close relation to one another that if they are sepa- 
 rated and isolated considerable loss is entailed; for the 
 advantage that lies in this close cohesion of all the 
 proprietary objects ceases. It is therefore advisable to 
 proceed as follows: if the whole property of the debtor 
 is intended to serve the creditors, an organization is 
 formed to turn the property to account, and reduce it to 
 money; and thus, partly by administration, partly by 
 the sale of the whole or portions, the advantage of cohe- 
 sion is preserved. In this way, greater losses are avoided 
 than the circumstances of the case require. 
 
 8. This leads of course to a co-operative form of the 
 relation among the creditors; for such an administra- 
 tion of property and realization presupposes unified 
 decision and action, and this result can only be attained 
 by a formal organization of the individual creditors. 
 This is the second aspect of insolvency. Instead of 
 co-operative development, there is still another possi- 
 bility — State attachment (Beschlag) and State admin- 
 
§261 LEGAL PROCEDURE 267 
 
 istration and realization; so that the creditors appear 
 only as applicants and the whole management is carried 
 out by the State itself. This form of bankruptcy is also 
 represented in the legal systems of the nations. It is 
 not, of course, impossible and may also accomplish the 
 desired ends, but the former method is to be preferred, 
 because the creditors will act with greater expert knowl- 
 edge and better understanding of business life. It is 
 always more advantageous if those who are themselves 
 concerned take the matter into their hands, so that the 
 activity of the State is limited merely to the super- 
 vision that is necessary to prevent the interests of third 
 persons from being neglected. 
 
 9. Accordingly, bankruptcy is no longer State execu- 
 tion, but a kind of regulated self-help that takes place 
 under so many precautionary measures that it causes 
 no uneasiness. 
 
 2. Administrative Jurisdiction 
 
 1 . Also the question whether the State or some organ 
 subject to the State has overstepped the bounds of the 
 law in its administrative activity can be decided by 
 legal procedure. For this purpose, there are special 
 administrative courts, the activity of which differs in 
 some particulars from that of the civil courts. 
 
 2. Also the State's failure to act may come before 
 the adftiinistrative court if action would have been a 
 duty. 
 
 3. The details of this subject belong to legal technic. 
 (Compare "Einfiihrung in die Rechtswissenschaft," (3d 
 ed.), p. 194.) 
 
268 STATE LAW [CH.VIII 
 
 SECTION XXVII 
 
 II. CRIMINAL LAW 
 
 1. Criminal Law in the Proper Sense 
 
 (a) Kin- Revenge (Blutrache). 
 
 1. Punishment is expiation, satisfaction, retaliation. 
 If a man does wrong to another, he does it from an 
 exaggeration of his own personality, and this aggressive- 
 ness must be restrained and the man made to realize 
 that his desires do not rule the world, but rather that 
 the interests of the community are determinative. 
 Hence, the nature of punishment is influence brought to 
 bear on the individual, in order to bring to his con- 
 sciousness the conditionality of his existence, and to 
 keep it within its limits. 
 
 This is done by the infliction of suffering, for suffer- 
 ing has the following effect: it cures the individual of 
 his individualistic excess; and, on the other side, it 
 makes it impossible for him to continue in such an 
 excess to the injury of others. 
 
 2. There are ages in which this element of punish- 
 ment alone appears, or at least plays a principal part; 
 thus it is in periods when kin-revenge is practised. The 
 individual is killed, maimed, or otherwise forced back 
 into his bounds, because he has trespassed on the domains 
 of the law. The wrong that is thus expiated is especially 
 the wrong that individuals have suffered ; it is the injured 
 individual, his family, his clan, that consider them- 
 selves wronged. Injury is weighed against injury, and 
 it is said: because the injured family has suffered, 
 therefore the person who inflicted the injury and his 
 family must suffer. 
 
§27] CRIMINAL LAW 269 
 
 3. This one-sided view of criminal justice later makes 
 way for its consideration in the social aspect. The 
 perpetrator is not punished because he has done wrong 
 to an individual, but because he has injured society as a 
 whole, and has sown the seed of evil deeds in the com- 
 munity. Not only the immediate consequence of the 
 deed enters into consideration, but the whole moral 
 injury that human society has suffered: the bad example 
 that corrupts others, the indignation felt that the evil 
 should triumph over and oppress the good, the great 
 insecurity of the conditions that thus arise — all these 
 emanate originally from one thought that the evil deed 
 brings about, or at least may bring about a lower state 
 of general moral life. Hence, if in such a case the 
 deed is to be expiated, and the criminal punished, the 
 aim is not only to restrain and paralyze his egoism, but 
 also to reawaken to complete purity the moral feeling 
 that has suffered injury ; and this is done by the suffering 
 inflicted on the criminal; partly because his egoism is 
 thus restrained, and that he may be made to feel the 
 supremacy of society; and partly because just suffering 
 has a conciliating power, and that it is assumed of a 
 man who thus suffers that he will regain his position in 
 society, and no longer remain in the same state of 
 depravity as formerly.'^ 
 
 4. The system of Idn-revenge has great defects: 
 
 (o) It is a disrupting element in national life. The 
 discord between families that are at enmity continually 
 stirs up and weakens the State, and great endeavors 
 must give way to individual revenge. 
 
 (b) A feeling of vast insecurity must take possession 
 of the people, and cannot fail to hinder to a great extent 
 the work of culture. A tremendous amount of human 
 
 "Compare my treatise, "Wesen der Strafe," 1888. Compare also 
 Ber.olzheimer, "Rechts- und Wirtschaftsphilosophie," V, p. 3 ff. 
 
270 STATE LAW [Ch.VIII 
 
 force is absorbed by the constant questions and problems 
 of revenge; and the fear and terror that seizes upon the 
 population must paralyze steady activity. 
 
 (c) One of its worst evils is that kin-revenge is not 
 limited to the actual criminal; and, further, that one 
 such act of revenge immediately begets a similar act, so 
 that an endless chain of victims follows. 
 
 5. On the other hand, this institution has its 
 ennobling sides. Self-esteem is increased ; personality is 
 raised above the swamp of material ambitions, and 
 inspired with courage; and, giving up everything for 
 an idea, the individual devotes himself to aims that 
 are outside the common impulses of life. This is 
 why attempts to abolish kin-revenge met with such 
 resistance, necessitating a disguised and roundabout 
 method of attack before the institution could be 
 rooted out. 
 
 6. Periods of blood-revenge are so much the worse, 
 because this revenge is carried out even when the mem- 
 ber of the family has not in fact been killed. The 
 idea is quite general, in such times, that death may be 
 caused by a magic spell ;_and if a man dies unaccountably, 
 efforts are at once made to find out from whom the evil 
 influence came. Herein lies the fearfulness of this 
 institution, in that it contains far too few rational ele- 
 ments, and rests rather on uncertain belief, blind pas- 
 sion, and fervent worship of the dead, a mixture that 
 works much evil on humanity. Moreover, the belief in 
 magic is not merely a matter of imagination; one who 
 believes himself to have been bewitched is so firmly 
 convinced of the fact that it acts as an auto-suggestion 
 and he dies. 
 
 The effect of this superstition is barely counteracted 
 by the belief that not only men, but also demons, may 
 bring about death; so that the fear and hatred that 
 
§27] CRIMINAL LAW 271 
 
 would otherwise have been directed at persons was thus 
 transferred to these imaginary beings. This was one 
 of the most successful influences of the belief in demons, 
 which thus greatly reduced the suffering of nations. 
 
 Then the idea made its appearance that by counter 
 magic the power of the evil elements could be turned 
 aside; and the magicians were appealed to, who, gifted 
 with supernatural powers, seemed to be able to protect 
 the unhappy victims. And so the magician became the 
 comforter of the man who believed himself to be 
 bewitched. 
 
 All these circumstances combined to moderate kin- 
 revenge, and to gain a greater influence for priestly law ; 
 they were promotive of culture, and therefore to be 
 valued. 
 
 7. But the idea that was most destructive in its 
 effect on kin-revenge was that one might allow his 
 revenge to be purchased, a materialistic idea in itself, 
 but one with an ideal background. Not the gain of the 
 family whose blood has been shed was considered the 
 main thing, but the frightful bleeding of the perpetra- 
 tor's family; and it was this that struck much deeper 
 into national life than the death of a single member of a 
 family. A man allowed himself to be appeased by 
 weregild, not because he and his family desired money 
 and possessions, but because they thus took from the 
 family of the criminal what it held dearest, the property 
 that it had acquired with much labor. 
 
 This does not mean that the idea of material gain was 
 always remote. It was merely not the first motive. 
 Once the practice had become rooted in national life, it 
 was of course only one step further to the reign of 
 avaricious instincts. Gradually and silently, this came 
 to be the case, until finally people were perfectly con- 
 scious of it, and were no longer ashamed of it, since it 
 
272 STATE LAW [Ch.VIII 
 
 had come down to them with the traditions of their 
 forefathers. So it came that from case to case there 
 was bargaining about the value of the dead person, with 
 the idea of revenge still as a motive in the background. 
 At first it rested with the family to accept the weregild 
 or not; and they were able to demand as high a sum as 
 they felt their threat to resort to bloodshed would com- 
 pel the other family to pay. 
 
 8. Gradually, however, a definite amount came to be 
 customary. By degrees everything grew to be more 
 or less regulated by custom; and in this practice, too, 
 the idea that one must do what was usual could not be 
 rejected. Finally, therefore, the family was regarded 
 as bound to accept the weregild, in certain cases at least. 
 In this way the acquisitive instinct dulled the desire for 
 revenge and cruelty, and thus it became a means of 
 furthering human culture; for the transition to State 
 criminal law occurs more easily after kin-revenge is 
 pacified. Finally the State itself can take over the 
 composition system and by appropriating part of the 
 money, and paying a part to those injured, can give 
 support to the State criminal law; as was the case, for 
 instance, in the Italian systems of law, in which, after 
 the weregild had degenerated into confiscation of prop- 
 erty, it was divided betwen the State and the persons 
 injured. 
 
 9. Not only was it possible, thus, to strike at the very 
 backbone of the perpetrator's family, but, in addition, 
 extreme humiliation and contrition could be required of 
 them. And this was done with excessive refinement: 
 money and property, which were the main things to the 
 avengers, were forced more and more into the back- 
 ground in favor of elements of mental affliction; and 
 apologies, humiliation, and honorable amends were 
 required before reconciliation was permitted. 
 
527 1 CRIMINAL LAW 273 
 
 10. In this way the revenge idea settled into the 
 idea of punishment. In all these acts of humiliation, 
 the avenger played but a passive part. He might 
 indeed gloat over his antagonist's abasement, but this 
 was not merely an individual satisfaction; it was also 
 an echo of the thought that the impious nature of an 
 evil deed was destroyed by profound penance, and 
 that purification of the soul led to atonement and 
 deliverance. 
 
 It is natural that religion should have assumed con- 
 trol of these elements; and so we soon find the priest- 
 hood eagerly endeavoring to bring about reconciliation, 
 and we also find its religious accompaniments. Thus 
 the penitents were obliged to submit to certain religious 
 penances, and to look for redemption with the aid of 
 divine grace. 
 
 Thus this element goes deep into the foundations of 
 morality, and draws out a variety of redeeming ele- 
 ments: the original character of kin-revenge is gradually 
 dissipated, and loses its severity and tenacity. 
 
 11. Another institution that aided in destroying kin- 
 revenge was the right of sanctuary which we find in the 
 legal systems of all the nations.'^ 
 
 Sanctuary in the widest sense is a certain recognized 
 relation of the perpetrator or his family that protects 
 him from kin-revenge. The relation may be one of 
 place, of time, of person, or it may rest on other con- 
 nections. The underlying idea is always the same, that 
 limits are set to the kin-revenge. 
 
 We speak chiefly of local sanctuary. It was first to 
 be recognized, and, in fact, could not be overlooked in 
 historical research. Certain places or localities demand 
 a consecrated peace. Any deed of violence, however 
 
 '• Of first importance for reference in this connection is the treatise 
 of my pupil, Hellwig, "Asylrecht der Naturvolker," (1903). 
 
274 STATE LAW [CH.VIII 
 
 justifiable, committed there, is thought to violate the 
 sacredness of the place. This is comprehensible, for 
 certain practices and customs require complete quiet 
 and isolation, and individual absorption in certain 
 trains of thought and ideas. Every disturbance would 
 hinder the practice and drive away the good spirits; 
 so much the more, of course, would this be the case, 
 if it were believed that if any deed of violence were 
 committed, infinite evil might thus be wrought to 
 mankind. 
 
 Hence it follows as a matter of course, that sanctuary 
 is intimately connected with religious practices, and that 
 just places of worship, in particular, places where the 
 spirits of the dead were supposed to tarry, were places 
 of sanctuary. Such were the temples, sacred groves, 
 tombs, etc., and also places of judgment, the judge's 
 house, the places where the ruler lived, the immediate 
 neighborhood of the chief, and elsewhere. 
 
 Sanctuary may also be temporary {Treuga), or per- 
 sonal {Anaya), things that lie within the province of 
 the universal history of law. 
 
 The whole idea of sanctuary rests on the above oppo- 
 sition of the legal order and peaceable regulation (p. 63). 
 Sanctuary is an institution of peaceable regulation which 
 is at variance with the carrying out of what the law 
 permits or commands; and thus leads out and beyond 
 the latter, powerful though it be. Here, too, we find 
 peace and law to be the two factors which, in their 
 mutual effect, have guided evolution onward. Peace 
 against law, law against peace; and, as regards criminal 
 law in particular, it was the task of peaceable regulation 
 to destroy the element of revenge, as far as possible, 
 and thus gradually to free atonement from its impure 
 component part, and to purify and clarify the institu- 
 tion of the law. 
 
§27] CRIMINAL LAW 275 
 
 (b) Internal and External Aspect of Acts. 
 
 The psychic conditions of an act are originally imma- 
 terial, or rather, they form no decisive motives. Their 
 origin and character are not recognized. Even if one 
 kills another accidentally according to our ideas, accord- 
 ing to the view held by primitive peoples, this accident 
 is really the expression of the spirit that rules the man; 
 for the belief of early times was, that a man has many 
 souls, and that it is one of these that acts in such a case. 
 The individual must, of course, answer for the deed; 
 whatever his soul does, he does. The principle that 
 only the objective deed, and not the psychic conditions 
 as well, is decisive has therefore a deeper background. 
 Of course, the difference cannot remain permanently 
 unrecognized: what is intentional and what is uninten- 
 tional cannot be regarded as equal. The man who lies 
 in ambush for another and kills him cannot be placed 
 on the same plane as the the one who kills another in a 
 wrestling match. The conscious evil spirit that leads 
 to murder, and the unconscious demon that gives the 
 hand an unfortunate turn in a game, both, indeed, rule 
 in the man who kills, but they cannot be compare4 with 
 each other. Even in the time when kin-revenge was 
 customary a distinction had to be made. People were 
 more inclined to be lenient in the accidental case and 
 to accept atonement for the bloodshed than when the 
 intention to murder was shamelessly clear. In this 
 way, intentional deeds were contrasted with uninten- 
 tional aqfs, and the two were differently treated. Thus 
 it remained for a long time. Other differences in guilt 
 could only be perceived after further progress had been 
 made in refinement. The idea that a wicked demon in 
 man governed contingency had to decline gradually; 
 gradually, because its effects, by virtue of the principle 
 of continuity, were still felt for a long time; and it was 
 
276 STATE LAW [Ch.VIII 
 
 a long time before the idea that even unintentional acts 
 must be punished could be overcome. But, by degrees, 
 the question had of necessity to arise : Did the man do 
 everything that he should do under normal circum- 
 stances, or did he act in a manner inimical to life? The 
 evil demon had in time to be reduced to what is con- 
 trary to the conditions of life in a man's thought and 
 action. If you have done everything that one would 
 do under ordinary circumstances, then the act can no 
 longer be attributed to a demon within, and the conse- 
 quences of the act come more and more to be recog- 
 nized as contingent, that is, as elements not inherent in 
 the act, and merely connected with it externally. It is 
 no longer the demon in man, but the demon of fate that 
 brings about the result; and for this the individual 
 cannot be made responsible. Thus gradually arises one 
 of the most difficult conceptions of the law of liability — 
 negligence; and this gives rise to the principle: one is 
 always liable for intentional misdeeds, but for uninten- 
 tional ones only in case of negligence ; that is, if one has 
 not used the necessary care to act without disadvantage 
 to mankind. 
 
 (c) State Criminal Law. 
 
 (ofl) General Remarks. 
 
 State criminal law did not develop in one, but in five 
 ways, and like most historical institutions has several 
 sources. 
 
 L From remote ages the principle has prevailed 
 that kin-revenge could only be practised outside the 
 family, never among relatives. Hence, if a man injured 
 or killed a relative, there could be no question of kin- 
 revenge; for that would have resulted in the family's 
 turning against and devastating itself, a consequence 
 entirely opposed to the idea of kin-revenge which aimed 
 
§27] CRIMINAL LAW 277 
 
 at the preservation and advancement of the family in 
 question. There was, therefore, no alternative in such 
 cases but to punish the offender, or turn him out of the 
 family. The latter course would indeed have impov- 
 erished the family, but that the idea was conceived of 
 allowing the exile to return, so that his absence was 
 merely temporary. Exile was regarded more as a means 
 of compelling the offender by atonement to make his 
 own return to the family possible. This atonement 
 was a family atonement, quite different from kin-revenge 
 atonement; its purpose was not to avert bloodshed by 
 purchase, but to lead the unworthy member of the 
 family back to it. This was the case where only one 
 family was in question. Then, when several families 
 combined and formed one union, it was not unnatural 
 that the same idea should be applied to this union, and 
 that kin-revenge within its circle should cease, even 
 when the persons concerned belonged to different fami- 
 lies. In this way, by the association of several families, 
 the State was formed, and thus it followed that what 
 had formerly been peculiar to the association formed by 
 several families should also be adopted by the State 
 type of association. Accordingly, kin-revenge within 
 the State automatically ceased. This development, it 
 is true, did not always proceed with such logical definite- 
 ness. The relationship among the kindred was not 
 always sufficiently intimate, and kin-revenge between 
 the families was generally too powerful to allow this 
 institution as a whole to end immediately; it continued 
 in many instances up into the period of highly developed 
 State life before it ran its course. 
 
 2. Another development occurred thus: the State 
 concerns itself with the institution of kin-revenge; it 
 recognizes it under certain circumstances; but it re- 
 quires definite precautionary measures, and especially 
 
278 STATE LAW [Ch.VIII 
 
 that the necessity of kin-revenge should first be estab- 
 lished by the State and should be carried out under its 
 supervision and control. Frequently a change took 
 place whereby the carrying out of revenge was under- 
 taken by an organ of the State, not by the avenger 
 himself; the place of the avenger was taken by the 
 executioner. 
 
 3. A third development was brought about by the 
 influence of the divine law; for every misdeed was also 
 considered an offense against the deity; in order to 
 turn aside his wrath, it was necessary to make an atone- 
 ment, which in this case was divine atonement. To this 
 idea was linked another; namely, that the atonement 
 was also in the interest of the State; for serious crimes 
 involved not only those immediately injured but also 
 the whole State. This was naturally the case, first in 
 regard to treason and other offenses that placed the 
 existence of the State in jeopardy. It was then extended 
 to include serious murderous acts and other things that 
 threatened to weaken the State. 
 
 Here, too, chieftainry played an important part, for 
 it meant, of course, an increase of the chieftain's power 
 if the authority to punish were transferred to him and 
 kin-revenge among the families were suppressed. So it 
 came about that strong, autocratic chieftains took the 
 authority to punish into their own hands. 
 
 4. The right of sanctuary also had an important 
 bearing on this matter. Whoever had sought sanctuary 
 stood under the protection of the wardens and keepers 
 of the place ; thus, under the protection of the priests or 
 judges. It is obvious that they in turn interfered and 
 either shielded the fugitive in the sanctuary, or declared 
 him to be unworthy of it. Thus, authority to examine 
 into the matter developed among those who guarded 
 the sanctuary, and this too was one of the sources of 
 churchly or State criminal law. 
 
§27] CRIMINAL LAW 279 
 
 5. Through the rise of a State criminal law, the idea 
 of punishment was purified and freed from subjective 
 adjuncts. The still dominant idea of individual revenge 
 was gradually rejected. People did not proceed against 
 the offender because of individual feeling against him, 
 but solely from the social conviction that some reaction 
 must take place. Whether the idea was a religious one, 
 and the punishment aimed at appeasing the anger of 
 the divinity; whether the chieftain punished in order to 
 wrest kin-revenge from the hands of a powerful family; 
 or whether the object was to produce order and quiet 
 in the family; in any case, the idea of revenge was 
 dropped. Even where, as in the vengeance of the gods, 
 it still flourished to a certain extent, it was so refined 
 and attenuated that it lost more and more of its original 
 character ; for, even if punishment was inflicted in the 
 conviction of divine anger; even if the off^ender was 
 removed in order to pacify the gods, and people looked 
 tremblingly up to the godhead who threatened to pun- 
 ish a whole region for the crime of an individual ; yet, 
 in all these cases, religious feeling was stronger than the 
 feeling of revenge. And even though people might be- 
 lieve in an angry and vengeful god, yet he stood far too 
 high above mankind for them to presume to share 
 his anger. 
 
 6. With this appears the second idea of criminal 
 justice: namely, that the personality shall be forced 
 back, because his action has poisoned the whole social 
 group and threatened its existence. Only traces of this 
 idea appeared formerly. That in the development of 
 the law the offender was forced to retreat within his 
 own boundaries, first occurred under the egoistic sen- 
 timent of revenge. Here, too, universal history resorted 
 to artificial means to obtain its ends. The idea that 
 the offender must be repressed because he had injured 
 
280 STATE LAW [Ch.VIII 
 
 society still lay dormant; at most, the feelings of the 
 injured family may have slightly vibrated with the 
 suspicion that not they alone, but all their kindred, 
 and the whole community, had suffered. This funda- 
 mental idea, of which only slight signs were seen in the 
 time of kin-revenge, now became the leading principle. 
 To it was added a second — greater consideration of 
 the motive of the act. Even though in the time of kin- 
 revenge the intentional deed had been distinguished 
 from the unintentional act, yet the great principal 
 significance of inner guilt was still little recognized. 
 This is easily comprehensible, because the practice of 
 kin-revenge was bom of personal feeling, and, in addi- 
 tion, the idea of an evil spirit that dominated the guilt- 
 less offender was still present. 
 
 But as soon as the principle was established that the 
 offender was punishable because he opposed society, 
 the conviction that his opposition was brought about 
 just by his culpable act was bound to become of deter- 
 minative importance. Why is it that the deed poisons 
 society? Because guilt produces guilt; because guilty 
 action begets the fear of further guilty action; because 
 the immorality that lies in the deed threatens to destroy 
 the whole structure of society. What was formerly a 
 subordinate factor here becomes the chief element. 
 It is the reprehensibleness, the unworthiness, the con- 
 temptibility expressed in the deed that is determinative. 
 
 7. This conviction is fostered and strengthened by 
 religious influence; for wherever in culture the concep- 
 tion of religion became deeper, the idea of the conse- 
 crated and unconsecrated, the godly and the ungodly, 
 the holy and unholy, necessarily appeared. In whatever 
 colors the notion first parades, it is still the idea of 
 guilt, and of moral worthiness or unworthiness, that is 
 prominent in the judgment of the deed. 
 
§27] CRIMINAL LAW 281 
 
 8. This is one of the greatest strides of criminal law. 
 The deed is not judged merely by its external, but 
 chiefly by its internal aspect, and the reaction adapts 
 itself to this judgment. Thus, instead of vengeful 
 retribution, we get refined justice; and punishment 
 assumes the character of an evil, the purpose of which 
 is to force the offender back into his place, and by the 
 purifying power of suffering to destroy the immoral 
 poison that he has poured into society. 
 
 (bb) Justice. 
 
 1. The justification of punishment depends on this: 
 that we do not regard man merely as a creature of 
 nature ; but assume that his soul forms a concentrated 
 unity expressed in the ego; that he is an autocrat in 
 the realm of the will; and that he can make laws by 
 virtue of which he acts thus or otherwise. There could 
 be no conception of justice, if man were simply a crea- 
 ture of nature, following natural instincts like a ma- 
 chine, so that there could be no question of guilt. There 
 can be no compromise with this view, although the 
 attempt has been made; for instance, by Merkel and 
 some of his successors. They assert that although 
 man is determined in his resolves, that is, although 
 he is forced to his acts by an inner series of causes, 
 he can yet be praised or blamed, and can still be pun- 
 ished; for there is liberty wherever external compul- 
 sion is lacking. This is entirely untenable" and rests 
 on a complete confusion of the primary ideas of psy- 
 chology; liberty does not consist in a man's being 
 proof against external influences: a clock or a machine 
 that is so adjusted to move without external influence 
 is also not free. Responsible freedom is only possible 
 if man himself is the lawgiver, in order to choose 
 
 " Compare "Moderne Rechtsprobleme," p. 34 f. 
 
282 STATE LAW [Ch.VIII 
 
 one thing or another; and though we can praise a good 
 machine or blame a bad one, to punish a machine 
 would be similar to the action of a child that destroys 
 her doll if she does not like its mechanical movements. 
 I have discussed all this at such length in my "Modeme 
 Rechtsprobleme" that I need not return to it.'* 
 
 2. In recent years it has been believed possible 
 to advance criminal law a step further and to discard 
 the idea of justice altogether. This was attempted 
 in two directions, it being asserted that the offender, 
 like every man, was only a creature of nature that acts 
 according to natural instincts by virtue of a constant 
 causal order. Hence, punishment, as we understand 
 it, was absurd, mediseval, and contrary to the spirit 
 of modern times. Secondly, it was emphasized that 
 the individual is only the result of his environment, 
 and the product of society. The whole evil could only 
 be combated by altering social conditions, or by mak- 
 ing another man of the offender, or by excluding him 
 from society altogether. In this way, the notion was 
 arrived at of the necessity of social improvement, and 
 further, the requirement that the offender be cured 
 or society be made secure from him. Only one other 
 element was emphasized besides, that the penalty was a 
 means of deterring from crime. The explanations that 
 were put forward in the beginning of the nineteenth 
 century were cited, according to which two factors 
 appeared in deterrence: first, the threat of punish- 
 ment, which was intended to act as a counter motive 
 to the incentives to crime ; and then, if the threat alone 
 proved insufficient, the visitation of punishment. This 
 latter factor, however, occupies a very secondary place; 
 if it were possible for the first to be effective by 
 
 1' Compare also Alexander von Hales, "Summa," II, fol. 106: "Liberum 
 arbitrium est consensus ob voluntatis inamissibilem libertatem et 
 rationis indeclinabile judicium." 
 
§27] CRIMINAL LAW 283 
 
 itself, the infliction of the punishment would be quite 
 unnecessary. Punishment would only be imposed be- 
 cause without it the threat would be void and ineffective, 
 a mere phantom that would at once be recognized as 
 an empty shadow. According to this view, penal execu- 
 tion would be only an indirect necessity; and if it were 
 possible, let us say, to deceive the world, and to pre- 
 tend that the punishment was being carried out, while 
 in reality the criminals in prison were being entertained 
 by games and dancing, the penal execution would then 
 be quite unnecessary. If this in itself is an exceedingly 
 hollow and unreal view, the whole theory becomes still 
 more unendurable, because it implies that one must 
 suffer for the sake of another. The offender, unfortunate 
 victim of natural instincts that are not sufficiently 
 tamed by the threat of punishment, would thus have 
 to suffer in order that the threat of punishment might 
 still retain its force for others: he would be the souffre- 
 douleur of society. 
 
 With ideas of this sort it was believed possible to 
 advance criminal law. On the one side was Feuerbach's 
 threat of punishment ; on the other, penal punishment 
 of the souffre-douleur of society, and finally the great 
 insane asylum in which criminals would be kept for the 
 protection of society: for according to this view, there 
 would be no difference between the insane and crimi- 
 nals; that is, no difference that would justify other 
 treatment on principle, except that with the insane the 
 threat of punishment would be perhaps less effective than 
 with the sane — and even that is not always the case. 
 
 3. One might feel tempted here to write a satire. 
 Such a criminal law is impossible, or rather it is no 
 longer criminal law at all. Instead of developing crimi- 
 nal law, it was to dissolve it entirely. Instead of justice, 
 we were offered a mere empty semblance. 
 
284 STATE LAW [Ch.VIII 
 
 4. It would, indeed, be unjust to deny all merit 
 to this tendency. It did in truth emphasize things 
 which otherwise perhaps would not have been so clearly 
 seen. It is true that social conditions are largely 
 responsible for crime; partly, in that a man may be 
 deprived of the means of subsistence ; partly, because he 
 may be forced into an environment in which his acti- 
 vity cannot properly develop, or in that he may be 
 surrounded by an impure and depraved atmosphere, 
 and be brought into contact with views of life that under- 
 mine his morality. No one will deny this, and it is 
 therefore one of our chief duties to improve social con- 
 ditions. This may be done partly by public measures, 
 partly by private activities. Societies and charitable 
 associations can do much to relieve the evil, and to fos- 
 ter conditions which allow of a tolerable development 
 of moral and economic powers. It is equally certain 
 that much can be accomplished by proper training and 
 education of the young; and that it is a wrong system 
 to maintain as inviolable the principle of home train- 
 ing, even where children grow up in a corrupt atmos- 
 phere which, like a plague, destroys all the germs of 
 morality. We all know this, and it requires no new 
 school of criminal law to bring it before our eyes. (Com- 
 pare above, p. 108 (b).) 
 
 It is equally true that punishment by no means ends 
 the matter ; that a man must often be subjected to com- 
 pulsory training afterwards, in order to become a fit 
 member of human society; moreover, that after he has 
 been punished we have no right simply to turn him loose 
 in the world, but that he must be aided to return to 
 sound associations. It is comprehensible that in many 
 cases we should regard compulsory or corrective educa- 
 tion as necessary after the criminal has paid the 
 penalty, and thus become free from his deed: the fact 
 
§27] CRIMINAL LAW 285 
 
 that he has been punished by no means makes him a 
 useful member of society. 
 
 It is none the less true, that, even after the penalty 
 has been carried out, it is still often necessary to pro- 
 tect society from the offender; for, not every man who 
 has served his sentence ceases to be a dangerous fel- 
 low; not all are so completely cured of their passions 
 and evil impulses, that it is safe to set them free in the 
 world. But even our fathers knew that. Schwarzen- 
 berg, in his day, and the "Carolina" recognized perma- 
 nent imprisonment in cases where no guaranty could 
 be given for a dangerous man; and, moreover, it was 
 customary to send such persons across the frontier, and 
 not only across it, but to banish them to distant lands. 
 In Alsace the offender was banished across the Longobard 
 mountains, in Bamberg across the Alps, and another 
 means that was considered so effective in that cruel 
 age, that the Bishop of Bamberg made it a special law, 
 was blinding. When a man has lost his sight, he is so 
 helpless that he can no longer be considered dangerous. 
 
 Today, of course, we no longer banish and blind, but 
 we must take other measures to render the criminal 
 innocuous; for instance, by deportation, or confine- 
 ment in special institutions. 
 
 5. It is the task of the present to cease mixing pen- 
 alty, correction, and protection in one concoction, as 
 has hitherto been done, and regarding it as one and 
 the same efficacious dose." In this way, of course, the 
 idea of punishment was bound to evaporate. It is 
 indeed possible, if a man is punished by loss of liberty, 
 to use this loss of liberty for correction and compulsory 
 education; but it is a mere chance, if the time of pun- 
 ishment coincides with the time of education, and as 
 regards the thought of security, generally only the 
 
 '• Compare "Moderne Rechtsprobleme," p. 44 £., 51 f. 
 
286 STATE LAW [Ch.VIII 
 
 punishment of imprisonment for life will absolutely 
 protect society. But it is unjust to compel a man who 
 only deserves temporary loss of liberty to spend his 
 whole life in a penal institution; whereas, it may be 
 perfectly suitable, after he has paid his penalty, to keep 
 him in an institution of security (Sicherungsanstalt) , 
 the purpose of which is solely security so that no more 
 discomfort than is absolutely necessary in order to 
 afford protection to society need be inflicted. This 
 security may of course be obtained in other ways; for 
 instance, by forbidding the man to visit public houses, 
 as is done in some of the Swiss cantons, etc. 
 
 When we have once thus clearly separated punish- 
 ment from other elements, the idea of punishment will 
 then appear in its true light; and we will be able to 
 devote ourselves so much the more to serving the ends 
 of justice. 
 
 The progress of criminal law will then be as follows : 
 
 1 . To distinguish and separate sharply righteous pun- 
 ishment from all the other consequences of the evil deed. 
 
 2. To take equal care that the misdeed is expiated by 
 the proper punishment, and that with this atonement, 
 other corrective measures are employed. 
 
 (cc) The Need of Punishment. 
 
 Punishment must conform to humanity's need of 
 punishment. This need is not an absolute one. This is 
 one of the most fruitful thoughts that connects the 
 theory of retribution with modem feeling and makes it 
 capable of satisfying all the demands of our present-day 
 life. Above all, this idea is important in explaining 
 and justifying pardon; for, the need of punishment 
 not being absolute, there is good reason why, whenever 
 important cultural conditions so indicate, punishment 
 should be omitted. The consideration of prescription 
 
§27] CRIMINAL LAW 287 
 
 is also in accordance with this thought; for it is time, 
 above all things, that decreases the need of punishment 
 more and more. And equally in accordance with it is 
 the important modern institution of conditional sen- 
 tence, for here the object is to set on his feet a person 
 who has once fallen ; and, after the difficult moments of 
 the judicial proceedings, to offer him a helping hand, so 
 that he may improve, and remain in the circle of those 
 who are active in a positive way. For this reason, he 
 must remain unpunished for the present; not even 
 being subject to a criminal judgment, but rather the 
 deed must be simply covered up and forgotten. Hence, 
 it is best for the conditional sentence to be so framed 
 that it is actually carried out only if the condition that 
 it is desired to avoid really occurs; that is to say, if 
 the offender behaves badly, and thus shows that there 
 is need of punishment as regards the established fact. 
 
 {dd) Details of Criminal Law. 
 
 1. The difference between completed acts and 
 attempts also comes more or less into prominence, accord- 
 ing to whether the subjective or the objective phase of 
 the act is more pronounced. In regarding the question 
 subjectively, so that it is only the inner guilt that is 
 expiated, the difference between attempt and completion 
 is only a difference of chance, based solely on whether 
 the evil intention that is projected into the external 
 world encounters favorable or unfavorable circum- 
 stances. There is no longer any difference made between 
 completion and attempt. The fortunate chance that 
 prevented the completion of the act, and turned it into 
 an attempt, cannot be credited to the perpetrator. 
 
 It is quite otherwise, if not only the guilty intention, 
 but also the destructive intention, is considered. The 
 unsuccessful act is without disadvantage to mankind. 
 
288 STATE LAW [Ch.VIII 
 
 and destroys no appreciable value. It is, indeed, not 
 without significance in its moral results, but no illegal 
 injury occurs. Hence, the need of punishment is 
 slighter; for punishment conforms not only to the seri- 
 ousness of the guilt, but also to the evil that the deed 
 brings about when it strikes into the world of values : the 
 graver the consequences are, the more serious is its oppo- 
 sition to society, and the more necessary is punishment. 
 
 It follows, as a matter of course, that the intermediate 
 step between purely subjective and purely objective 
 treatment best covers the determinative factors, con- 
 forms best to the demands of justice, and therefore 
 stands on a higher plane than the treatment that does 
 not punish the attempt at all or punishes it equally with 
 the completed act.^" 
 
 2. (a) Several persons may participate in the act, 
 either by actual co-operation, or by mere psychic influ- 
 ence. In- actual co-operation, however, psychic ele- 
 ments also come under consideration; for we have only 
 to do with true co-operation if several persons strive 
 toward the same end. This working together may be 
 mutual, each one knowing what the other is doing and 
 striving to connect his action with the others. It may 
 possibly, however, be one-sided; for instance, A knows 
 what B is doing, but B knows nothing of .41s action. 
 In such a case, of course, B can only be held accountable 
 for what he himself did; whereas A is also connected 
 with the success of B's action, because he made it a 
 means of carrying out his own plan, and thus used it in 
 
 •"Thus even the Scholastics, for instance Alexander von Hales 
 ("Summa de intentione in genere," (1515) II, fol. 217), wrote: "Qui 
 voluntatem plenam exeuntem in opus habuit, recipiet similiter ratione 
 voluntatis et ratione actus: qui vero habuit tantum voluntatem, non 
 recipiet nisi pro voluntate, non enim recipiet pro eo quod non habuit; 
 ergo hi duo ad paria in merito judicantur." And the exponent of natural 
 law, HugoGroHus, "De jure belli et pacis," II, 20, sec. 39; Pufendorf, 
 "De off. hom." II, 13, sec. 16; Montesquieu, "Esprit," VI, 16: "plut6t 
 
 . . ce qui attaque plus la sociSte que ce qui la choque moins." 
 
§27] CRIMINAL LAW 289 
 
 the same way as he would have used some natural 
 operation to further his own ends. 
 
 (b) The activity of the instigator, and that of his 
 psychic assistant, come under consideration in a purely 
 psychological way. The instigator is the one who by 
 arousing the motive causes the action; as, by means of 
 incentives, he stimulates some person to some act in 
 which otherwise this person would not engage. It has 
 been asserted that no causation is possible here, because 
 the activity of the instigator is directed towards a free 
 human soul that cannot be regarded as subject to direc- 
 tion; not, at least, if we assume free will. This view 
 has long been refuted. Under any conditions, the insti- 
 gator can arouse the motives, and thus bring about an 
 inclination to activity, which leads to the deed, if the 
 offender gives way to it. His offense lies in that he does 
 not resist but acts in accordance with this inclination. 
 But this does not prevent the man who caused the inclina- 
 tion from being responsible, in the same way as he would 
 be responsible if he laid something on an inclined plane, 
 where it would fall unless some obstacle intervened. 
 
 (c) As regards the liability of the instigator, various 
 ways have been taken. Some laws provide that the insti- 
 gator shall be more severely punished than the per- 
 petrator, because the initiative must be attributed to 
 him; yet, it must be borne in mind that the seed sown 
 by the instigator often falls on fertile soil, and the 
 offender not seldom goes to work with a light heart, 
 as soon as he has received even a slight impetus; in 
 fact, it is often the perpetrator of the deed who offers 
 himself, and awaits the instigator's suggestion. Hence, 
 the latest codes of law rightly and on principle place the 
 instigator and the actual offender on an equal basis; 
 which, of course, does not prevent, that in individual 
 cases, their punishment may vary greatly. 
 
290 STATE LAW [Ch. VIII 
 
 3. It is a nation's cultural position and cultural needs 
 that determine what is to be punished. What is trifling 
 and unimportant to one nation is grave and significant 
 to another. The following points in particular come 
 under consideration: 
 
 (o) A nation that is strongly attached to property 
 will punish offenses against property, especially theft, 
 severely; while another nation, with a weaker pro- 
 prietary sense, will punish the same crime more mildly, 
 perhaps only by a fine. That German law originally 
 simply hanged the thief and had done with it, 
 shows the strength of the acquisitive instinct of the 
 Germans. 
 
 (6) A nation that especially loathes certain accom- 
 panying phenomena of the deed, punishes the latter 
 much more severely when these phenomena are pres- 
 ent than otherwise. Thus, for instance, German law 
 provides a heavier penalty for deceitful than for violent 
 offenses. 
 
 (c) Legislators sometimes try to bring about an 
 improvement in conditions by imposing particularly 
 heavy penalties for certain crimes. These attempts 
 can only be successful if they are supported by the 
 sentiment of the nation. 
 
 4. The relation between punishment and guilt 
 also is not absolute, but is determined by the indi- 
 vidual's mode of feeling, and the social perception 
 that weighs the guilt and the atonement that corres- 
 ponds to it. 
 
 The erroneous assumption that capital punishment 
 is unjust in all cases has long since disappeared. For 
 the rest, the kind of punishment (imprisonment, de- 
 portation) is a matter for criminology to deal with, and 
 need not be further discussed here. 
 
§27] CRIMINAL LAW 291 
 
 2. Realization of Criminal Law. Criminal Procedure 
 
 1. Criminal procedure long retains the same form 
 as civil procedure; the more so because later criminal 
 law took the place of kin-revenge, and kin-revenge 
 of course emanated from the law of the injured indi- 
 vidual. It is true that as soon as the idea of injured 
 human society appeared, a procedure could not sufifice 
 in which only the injured individual appeared; for the 
 need of punishment was frequently keen, even while 
 there might not be any relative of the murdered man, 
 or none, at least, that would appear. Thus, gradually, 
 the principle developed, that in such cases, where the 
 whole of society appeared to be more or less affected, 
 any one of the people was entitled to prosecute. The 
 prosecution became a popular prosecution, a system 
 that besides certain advantages, involved also serious 
 disadvantages; especially, as not always the proper 
 persons appeared as accusers. It is therefore compre- 
 hensible that a second procedure developed which, in 
 contrast to the more democratic principle of the popu- 
 lar prosecution, may be regarded as monarchical — 
 the inquisitorial procedure. The idea from which this 
 started was that rumor, public report, must be treated 
 as taking the place of an accuser, so that in such a case 
 no accuser was necessary. The underlying reason was, 
 however, that the chief considered himself to be the 
 representative of the public interest, and declared 
 himself to be competent to act wherever he supposed 
 State interests to be injured. When a procedure with- 
 out a complainant was thus constructed, the party- 
 process (Partei-Prozess) had to be given up altogether, 
 and legal procedure so transformed that the State, 
 that is, the judge, on his own motion advanced every- 
 thing that he considered necessary in order to reach 
 correct conclusions. 
 
292 STATE LAW [Ch.VIII 
 
 2. Thus it is comprehensible that the inquisitorial 
 process ( Untersuchungsprozess) may be good or bad 
 in form; it may also degenerate. This happened in 
 the Germanic Middle Ages under the influence of the 
 system of torture (p. 255), and of the idea that the exam- 
 ining judge might use every possible method, as far as 
 the accused was concerned, to obtain the truth. The 
 accused was denied all the rights of a person and was 
 treated as a thing without rights, to be used for State 
 purposes in any way that might be desired. The theory 
 of the rights of man was not yet invented; and the 
 legal sense was not sufficiently developed to make it 
 possible to realize how greatly all the members of the 
 State were injured by such methods, and to what ex- 
 tent personal dignity was undermined. The abolition 
 of this system, and the transformation of the inquisi- 
 torial process, were missions to be performed by more 
 modem times; just as were the abolition of torture, 
 and the establishment of the principle that no one can 
 be obliged to incriminate himself and testify against 
 himself. 
 
 3. In contrast to this, the State had to get to the 
 bottom of the matter, and obtain the necessary proofs 
 by thorough investigation of crimes. A perfecting of 
 the methods of examination and investigation neces- 
 sarily went hand in hand with the idea that the person 
 was inviolable to the extent that he could not be required 
 to testify against himself. Accordingly, criminology 
 and criminological technic, parallel with criminal pro- 
 cedure, developed to ever greater perfection, (p. 263.) 
 This is the point at which we now stand. There may 
 be added the inclusion of the lay element, which rests 
 on the general fundamental idea explained in the theory 
 of the State, (p. 210.) 
 
5 28] PEACEABLE PROCEDURE 293 
 
 SECTION XXVIII 
 III. PEACEABLE PROCEDURE 
 
 1. The activity of the State in furthering the develop- 
 ment of the rights of individuals may be denominated 
 peaceable procedure (Friedensgang) . Here we are not 
 concerned with the settlement of conflicts, but with 
 peaceful activity in the adjustment of legal transactions, 
 and the carrying out of legal actions. 
 
 2. The State offers its aid: 
 
 (a) For the sake of the certainty of proof. 
 
 (b) To enlighten those concerned in their legal 
 dealings. 
 
 (c) To examine within a certain compass, whether 
 the legal transaction bears in itself the presuppositions 
 of legal efificacy. 
 
 (d) To bring about publicity which is sometimes more 
 positive in nature; sometimes represents a double legal 
 order (e.g., inheritance certificate); sometimes becomes 
 a condition of rights {e.g., land registry) . Comp. p. 87 (3) . 
 
 (e) To establish organs or representatives for those 
 persons who, according to definite legal principles, 
 must act through organs or representatives; for in- 
 stance, guardians, organs of a juristic person. 
 
 3. Peaceable procedure is also called non-contentious 
 jurisdiction (JreiwilUge Gerichtsbarkeil). There is a non- 
 contentious jurisdiction of civil and of public law (for 
 instance, the issuance of patents). The former is gen- 
 erally considered exclusive, but incorrectly. 
 
 4. Peaceable procedure was not developed in entirety, 
 but in individual cases of application, and has only 
 recently been embodied in a system. 
 
 5. The details belong to the subject of legal technic. 
 (Compare "Einfuhrung," 3 edition, p. 202.) 
 
294 THE LAW OF NATIONS [Ch.IX 
 
 CHAPTER IX 
 
 THE LAW OF HUMAN SOCIETY— THE 
 LAW OF NATIONS 
 
 SECTION XXIX 
 
 I. INTERNATIONAL LAW AND LAW OF FEDERATED 
 STATES 
 
 1. The State as the realization of the moral idea 
 has sovereignty, that is, an authority that stands above 
 individuals, limited solely by the direction of the State's 
 aim and the mission of culture. But the question 
 whether such a restriction is fitting in the individual case 
 is left to the State alone; and its organs have only to 
 consider how far legislation must reach in order to 
 meet the demands of culture. 
 
 This standpoint, according to which the State forms 
 the highest instance, is the result of historical evolu- 
 tion; it dates from the time when the idea of the world 
 empire had disappeared, and all the States confronted 
 one another independently, and without supreme 
 authority. 
 
 2. The division of mankind into States was indis- 
 pensable ; it had this great advantage, that the members 
 of the different States could develop their qualities and 
 talents without being hindered by the contradictory 
 views and endeavors of others who were dominated 
 by an entirely different view of life. Such a national 
 formation is of special value, because it is the only way 
 in which a uniformly gifted national group can develop 
 its own life, its own talents, and abilities to the utmost, 
 (p. 43.) 
 
S29] LAW OF FEDERATED STATES 295 
 
 On the other hand, every class of the population has 
 its own one-sidedness ; it will remain stationary on a 
 certain plane of education and knowledge unless it 
 receives impulses from without, and feels the influence 
 of foreign images and ideas; so that a constant exchange 
 between its own development and between the assimi- 
 lation of, and adaptation to, external ideas takes place. 
 
 In this way, nations of the first rank have developed 
 in quite small State communities; but in such a manner 
 that constant reciprocal action went on; the most strik- 
 ing example of this is the Greeks of antiquity. 
 
 It is clear, however, that certain great aims can only 
 be accomplished in a more extended national com- 
 munity, particularly, great agricultural aims ; but indus- 
 trial, educational, and philanthropic aims also demand 
 that an extensive field shall be open for endeavors, and 
 abundant means shall be at hand in order to overcome 
 the difficulties. 
 
 3. In this way State confronts State, each for itself, 
 but each dependent on the other for certain cultural 
 purposes. This constellation led originally to a kind of 
 anarchy; for among the States, in conformity with the 
 principle of sovereignty, no law is known; the source 
 of the law is the State and the State only; it can con- 
 struct a system of law as it will. 
 
 This condition is unendurable for long and cannot 
 exist alongside of the great cultural mission of humanity. 
 Even antiquity, even the Orient assumed that there was 
 a higher law than State law — universal divine law. 
 The States by worshipping their gods regarded them as 
 the representatives of the law, and the protectors of 
 concluded agreements; and just as the divine law was 
 appealed to in order to confirm private agreements, so 
 too it was used to confirm agreements between the 
 nations. This was especially so because it was assumed 
 
296 THE LAW OF NATIONS [Ch. ix 
 
 that the divine hiws of the A-arious religions had cer- 
 tain points in cominoa; and, particularly, that in the 
 whole world of men the principle was valid that tlio 
 faithful fulfilhncut of an agreement was a duty over 
 which heaven rulwl. 
 
 But also in otlier respects i)eopk' believed liionisclvcs 
 restricted by divine law; as, for instance, in tiio manner 
 of declaring war, and other things. 
 
 In this way, it is natural that we should find, oven in 
 antiquity, legal tenets of a law tliat stood above the 
 nations. Thus in old Babylonia, in tiic Egyptian age, 
 and in eastern Asia (above all, in China), we find a 
 variety of agreements, partly treaties of peace, partly 
 treaties of justice {JusHzvertrdjic); and among the 
 Romans, too, the law of agreement would have been more 
 developed if the imperial character of tiie Roman Empire 
 had not caused the whole conception of international 
 law to totter. 
 
 The Roman conception of tivc world empire con- 
 tinued up through the Middle Ages, till to tiie destruc- 
 tion of the imperial idea ; and, at this point, international 
 law had again to begin. It was the necessary supple- 
 ment of legal history as soon as the dreams of a world 
 empire vanished. There was now no longer an emperor, 
 as an emperor of tlie world, at the head, to whom the 
 individual States were subject, who judged them and 
 settled their differences. I-Icnce the idea was bound to 
 arise that, though no world State stood above the 
 nations and altliough the religious law, owing to the 
 differences in religious conviction, could no longer uni- 
 for nily bind the world, yet a super-national lawruled 
 that regulated the relal:ions of the nations to one another; 
 they, neither, could live in anarchy but must conduct 
 themselves towards one anotlier according to definite 
 legal principles. 
 
5 29] LAW OF FEDERATED STATES 297 
 
 4. The idea of a super-national law standing above 
 the sovereignty of the State was bound to appeal to the 
 nations, the more because two formations arose which 
 forced this idea upon them. On the one hand, there 
 was the federation of States: agreements among States 
 had assumed such proportions in some instances that the 
 States really formed an association and took a variety 
 of enterprises into their common keeping. This con- 
 nection was increased by the institution called "real 
 union," where two States placed themselves under one 
 and the same monarch. 
 
 The matter necessarily appeared still more urgent 
 when the idea of the federal State arose; that is, of a 
 State community formed by a number of States that 
 join one another to form a unified State, so that the 
 members of the individual States are at the same time 
 members of the whole State. It is true that this makes 
 it necessary for the individual States to give up some- 
 thing of their sovereignty, and limit themselves in their 
 State authority in favor of the unified State. The fed- 
 eral State is calculated, on the one side, to give strength 
 and solidity to the whole and to make it possible for 
 great enterprises to be undertaken, for commerce with for- 
 eign countries to be properly protected, and for the 
 individual to occupy a position of respect abroad. On 
 the other side, it affords the individual State the pos- 
 sibility of cultivating the special relations that are 
 suited to the character of its population, and to develop 
 its own life within its own borders. The combina- 
 tion between unified strength and the preservation of 
 the peculiarity of the different circles of the population 
 which is indeed possible in the single detached State 
 but is frequently in danger there, becomes a reality 
 in the federal State. The federal State also makes it 
 possible for States that would on no account lose their 
 
298 THE LAW OF NATIONS [Ch.IX 
 
 identity, by forming a part of a unified State, to join 
 together and form a federation to which they concede 
 only a portion of their rights: thus the federal State 
 is extremely productive of unity, and hence also 
 promotive of culture. ' 
 
 Even in antiquity we find examples of federal States; 
 but the idea became fruitful mainly through the example 
 of the United States of America, whose constitution 
 served as a model for most of the later federal States. 
 The United States is a conspicuous example of the fruit- 
 ful power of this idea; it may be that some time in the 
 future the States of Europe will also join one another 
 in this way and form a unity. If this were done, some- 
 thing would be realized that has been merely a dream 
 and an illusion since the fall of the imperial idea in 
 Europe. 
 
 The federal State endeavors then so to unite the States 
 that the citizens of the individual States are also citi- 
 zens of the whole, and yet belong to their ownStates. 
 This is the more significant because the federal State 
 offers a number of possibilities for development both 
 in the direction of individualization and of unification; 
 for the capabilities of the federal State may be very 
 different from those of the individual States. Thus, 
 the development is possible that the number of such 
 capabilities increases and the collectivity inclines more 
 and more towards centralization. But, on the other 
 hand, it may also be that the tendency toward things 
 in common may decrease and that distinctions may 
 increase. 
 
 5. In a certain sense, the federal State is a dissolu- 
 tion of international into national law, for the relation 
 between the whole State and the individual State is 
 not one of international but of national law; because 
 
 1 "Moderne Rechtsprobleme," p. 85 f. 
 
§30] SUPER-NATIONAL LAW 299 
 
 the separate States have no sovereignty, but are sub- 
 ject to the whole State, just as are the citizens of the 
 States; only the relation of the separate States to one 
 another may be one of international law if the whole 
 State has not taken these relations into its keeping and 
 declared that they are to be regulated by the whole 
 State. Nevertheless, the federal States suggest inter- 
 national law to this extent, that here too a super-national 
 law exists; for the individual States are States and are 
 subject to the law of the whole State. But this super- 
 State law again is itself a State system; it is the law 
 of the whole State, not a system of law beyond the State, 
 rooted in a legal order that lies outside. 
 
 SECTION XXX 
 II. SUPER-NATIONAL LAW (Uberstaatliches Recht) 
 
 \. It would be the ideal of cultural development if 
 all States would unite in one great whole and aid one 
 another in the creation of culture; so that a frater- 
 nalism would rule among the nations, and each would 
 advance the other, in order to attain to the highest 
 technical, scientific, and artistic achievement. This 
 would presuppose a kind of world empire, a great family, 
 the members of which would be the different nations; 
 a family with common organization, and unified leader- 
 ship. 
 
 This has sometimes been tried; frequently nations 
 and rulers have undertaken to create a world empire. 
 The most important attempt was the great Christian 
 empire in the Middle Ages with the German Empire; 
 it had been preceded by the mighty Roman world 
 system. (Compare p. 296.) 
 
300 THE LAW OF NATIONS [Ch. IX 
 
 These dreams have flown. An analogy to Roman 
 world law no longer exists, and the union of the nations 
 in one great Christian world-State has long ceased. 
 Rather, as we have already said, independent States 
 developed from the ruins of the old imperialism, with 
 complete sovereignty; and the nations therefore con- 
 front one another as individuals, each with its inde- 
 pendent laws, each, as a State, creating a system of 
 law. 
 
 2. After the separation of the nations, international 
 law, as the super-national standard, necessarily com- 
 bined the nations and created legal relations among 
 them. Such relations among the nations may be more 
 or less intimate, or they may be limited simply to the 
 regulation of certain points in international commerce. 
 But as soon as disputes arise, their settlement entails 
 considerable difficulty. The idea of establishing an 
 areopagus of the nations, or at least a court of arbi- 
 tration to settle these disagreements, bears witness 
 to a closer international legal connection. This idea 
 has recently greatly increased in strength, and the desire 
 for peaceful settlement has become more and more 
 urgent. 
 
 3. Of course, such international legal customs al- 
 ways mean an interference with the power of the 
 individual State; hence we have to struggle against 
 very strong counter-currents of individualistic national 
 nature. The passionate devotion to one's own nationality 
 described on page 294, a quality that in itself is pro- 
 motive of culture, will long fight against bowing to such 
 a super-national law. Nevertheless, the idea must grad- 
 ually penetrate, and when it has become fully developed, 
 the chief step toward the peace of the nations has been 
 taken: peace represents fratemalism among the nations, 
 negative fraternalism at least, so that there is no longer 
 
§30] SUPER-NATIONAL LAW 301 
 
 any active hatred. Positive fratemalism may develop 
 along with it, but that will require that the nations 
 approach nearer to one another. 
 
 4. Another important point must be noticed here. 
 It is not always legal difficulties that lead to strife, 
 but often cultural historical disagreements which prevent 
 a nation from occupying the position that belongs to 
 it according to its talents and its place in the ranks of 
 the nations. Not seldom races are split up under dif- 
 ferent governments; while their union might mean an 
 advance in culture, since the combination of similar 
 forces is often able to produce new advances. Often- 
 times a nation is shut off from the sea, the means of 
 communication with other nations, and believes that 
 it is in need of this, in order to develop itself economi- 
 cally, and to take its proper place among the peoples. 
 Sometimes the industries of a nation are injured by the 
 oppressive measures of another nation which refuses 
 to grant better conditions. 
 
 In these cases, the forces contained in collective life 
 will strive for an outlet; and if they are strong enough 
 the nation will attempt, if necessary with violence, 
 to gain the object that it believes to be a necessary con- 
 dition of its welfare. 
 
 That such developments and alterations take place 
 is a national necessity. The active forces of humanity 
 cannot be permanently repressed. New tendencies and 
 ambitions will ferment in the old channels, and will not 
 rest until they have found their fulfillment in one way or 
 another; unless, indeed, overpowering forces oppose 
 them, which then leads to severe oppression. In any 
 case, it will come to a contest of forces in order to prove 
 whether the abilities contained in the nation are ade- 
 quate to overcome the obstacles. As has been elsewhere 
 emphasized,^ this is the most important obstacle to 
 
 ' "Moderne Rechtsprobleme," p. 104. 
 
302 THE LAW OF NATIONS [Ch. IX 
 
 universal world peace, and the last stronghold of war 
 can never be destroyed until a method is found of set- 
 tling such differences in a suitable way. We have still 
 far to go to reach this point, and our concern at present 
 cannot be to abolish wars but to restrict and limit them 
 to a great extent.' 
 
 5. When once the idea has arisen in this way that 
 there is some law above the State, a so-called super- 
 national law, we have gained a new plane of culture. 
 The attempts to form, a world State endured only for 
 a time because it was not possible, in view of the size 
 of the earth and the tremendous differences in mankind, 
 to establish a unified State government with power 
 enough to operate from one end of the State to the other 
 and yet give every race the possibility of developing 
 independently. Even the boldest glance into the future 
 in this direction can see at the most only State alliances, 
 or federations of States, under the protection of which 
 the individual States would stand and the super-national 
 law would find its support. How far in this direction 
 the future formation of States will go cannot be fore- 
 seen; but in any case it is in a far distant future. In 
 the meantime, it is a great idea that the relations of 
 the States to one another should be subject to a legal 
 order and that here, too, not the voice of power but 
 the voice of culture should be determinative. It is not 
 only the individual State that should be a centre of 
 culture, but the attitude of all the States to one another 
 should conform to the cultural order so that one does 
 not oppose and operate against the cultural develop- 
 ment of another. This is especially true because our 
 commerce aims at overstepping the State boundaries 
 and trade spreads over the whole world without keeping 
 
 ' In regard to notable peace efforts that date back to Du Bois and 
 the PoUsh king Podebrad (1462), compEire Schiicking, "Organisation der 
 Welt," p. 560, 564. 
 
5 30] SUPER-NATIONAL LAW 303 
 
 to the limits of the State. The exchange of wares, 
 travel abroad, the constant interchange of ideas and 
 everything that intercourse includes, makes the habits 
 of one country known in another where they may be 
 adopted and become part of the national customs. 
 
 6. But the question is very important whether super- 
 national law created in this way, in as far as it is a law 
 among the nations, also creates indirect rights of 
 individuals; for instance, if in an international legal 
 agreement it is provided that certain religious societies 
 shall have juristic personalities, or that navigation 
 shall be free. Here there are two possibilities: either 
 international law only obliges the individal State to 
 conform to the agreement, while the individuals of that 
 State still remain subject only to its own legislation; 
 in which case it is indeed the duty of the State to adjust 
 its legislation in conformity with this; but if it does 
 not, the individual has no means of forcing the fulfill- 
 ment of the international legal duty. Thus, it would 
 be, for instance, if -the State, in spite of the agreement, 
 should through its legislation deprive the religious 
 society of its juristic personality. The tendency of 
 modem law is to determine that such a super-national 
 order also grants rights to the individuals which are 
 independent of the legislation of individual States. The 
 development, however, is not yet complete, and espe- 
 cially the principle has not yet been acknowledged 
 that the courts are able to declare a law invalid because 
 it conflicts, with international law. No State should 
 cherish the idea that it is completely isolated, but each 
 should realize that it forms a part of the great com- 
 munity of States in and with which alone it can operate.'' 
 
 7. Super-national law without the support of a super- 
 State ( Uberstaat) cannot of course be true legislation 
 
 * See my essay in the "Z. f. Volkerrecht," II, p. 209. 
 
304 THE LAW OF NATIONS [Ch. IX 
 
 {Gesetzesrechi) ; but it can be law that develops in 
 legal custom ; it can be customary law. (p. 86.) It may 
 also arise in this way, that the States come together 
 and declare certain principles to be valid principles. 
 In this way, too, the idea of law is embodied, and made 
 the universal authority; just as in an individual State 
 men may establish customary law, thus raising it out 
 of the condition of doubt onto a firm basis. 
 
 SECTION XXXI 
 
 III. ACHIEVEMENTS AND ASPIRATIONS 
 
 1. At present international law has not prospered 
 to the extent of making the principle of self-help en- 
 tirely dispensable; and with self-help comes power, 
 and also the abuse of power. A condition in which the 
 law of self-help is paramount is war, whereby two States 
 enter into an antagonistic relation and undertake, by 
 methods admissible under international law, to weaken 
 each other with^the object of attaining certain demands, 
 and forcing the other to yield. War was formerly a 
 relation outside the law. Although otherwise inter- 
 national law was but little developed, yet in peace 
 certain principles existed; but in war everything was 
 thought admissible, and people believed themselves 
 superior to all law. We have ceased to hold this view. 
 In war we do indeed tolerate an institution of self-help, 
 but one that lies within international law, and that can 
 be applied only under the observance of its principles. 
 These principles have become more and more settled, 
 and we speak of humane war, meaning that only those 
 sufferings may be inflicted which serve the purposes of 
 
§31] ACHIEVEMENTS AND ASPIRATIONS 305 
 
 war; no unnecessary tortures: war must be a war of 
 purpose, not a war of passion. 
 
 The controlling idea is that war is waged only against 
 the State, not against the population ; against the State 
 and the organs of the State to which organs also the 
 combatants belong; further, that the activity of war, 
 in as far as it keeps within the limits of international 
 law, is legal, and therefore neither the State nor the 
 combatants can be made responsible for it. Therefore 
 no harm may be done to the prisoners of war, and they 
 may only be guarded as closely as is necessary in order 
 to keep them away from the enemy and thus to deprive 
 him of human material. 
 
 It was long before such principles were accepted; 
 for they are based on conceptual differences with which 
 the nations originally were not familiar; and they were 
 also at variance with the passionateness that existed 
 between the nations, and which immediately extended 
 enmity against the State to include also the people. It 
 is a long step from the former system of waging war, 
 under which whole classes of the inhabitants were made 
 slaves and where robbery and plundering were practised, 
 to the manner in which wars are carried on today. 
 The modem principle is a tremendous advance, resting 
 on the principle that even in war, the results of culture 
 must be spared as far as possible; and that the per- 
 sonal happiness of the people must not be injured to a 
 greater extent than the purposes of war require. 
 
 But the time will come when wars grow ever rarer 
 or cease altogether. Before this can happen, however, 
 super-national law must be developed in such a way 
 that the sovereignty of the individual States obeys 
 unconditionally the authority of the higher law, and 
 that organs exist for this purpose which pronounce 
 the higher law and are in the position to carry it out. 
 
306 THE LAW OF NATIONS [Ch.IX 
 
 A fuller treatment of the subject belongs to inter- 
 national law.' We have merely spoken here of a future 
 when a super-national law will stand above national 
 law, when the State will still be a great cultural insti- 
 tution, but the whole of humanity and the nations will 
 no longer w.ork alone, but in their collectivity, to bring 
 about the supreme aims of culture. 
 
 2. In international law, to a greater extent than 
 elsewhere, the great principle exists that whatever is, 
 is reasonable. This does not mean that whatever is, is 
 perfect, and needs no alteration, but that what exists 
 in the life of States and nations, daily fulfills an abund- 
 ance of cultural purposes. Hence whatever exists, 
 even though it be imperfect, must be recognized as a 
 reasonable institution; for if it did not exist, the situa- 
 tion might become unendurable, since in an unorganized 
 condition of things, all the achievements of culture 
 would perish. 
 
 No special justification is needed therefore, if, through 
 the violence of war, or in some other way, a definite 
 change is wrought in the international legal situation; 
 this change is valid, at least as long as no higher super- 
 national law interposes and condemns and forbids it; 
 for as long as this is not the case, and the powerful means 
 necessary to enforce super-national law are lacking, it 
 is an unconditional necessity to acknowledge the achieve- 
 ments of international strife. If this were not done 
 there would be no hold, no order, or rule: what exists 
 could never be replaced with something else that would 
 fulfill the demands of culture, and thus we should be 
 plunged into the miserable conditions of anarchy and 
 statelessness. 
 
 Hence, the principle must be maintained that as 
 long as super-national law does not advance beyond 
 
 s "Einfiihrung in die Rechtswissenschaft," p. 285 f. 
 
§31] ACHIEVEMENTS AND ASPIRATIONS 307 
 
 national law, in this respect, also, the achievements 
 of war become law, and must be recognized as such. 
 
 3. Agreements between States have a double sig- 
 nificance. 
 
 (a) They create rights, either of the parties to the 
 agreement only, or also of individual persons, so that 
 the latter can refer directly to the treaty in demanding 
 their rights, (p. 303.) 
 
 (6) In addition they have this significance, that they 
 establish international legal principles; thus they con- 
 tribute to the growth of the law as an international 
 customary law. 
 
 In both respects, the philosophy of law must recognize 
 agreements between States; for nations, like individuals; 
 are justified in interposing and regulating their legal 
 relations. The conditions of culture can be best ful- 
 filled, and cultural obstacles removed, through the 
 possibility of such regulation in accordance with agree- 
 ment. 
 
 It is indeed true that in cases of urgent necessity, a 
 State may withdraw from an agreement, if it would 
 otherwise be obliged to sacrifice its vital interests; 
 such a reservation should be inserted in all international 
 agreements; for no nation is justified in renouncing 
 its conditions of life. 
 
 4. Thus it appears that the international law of 
 today is in a state of insufficiency ; but it is the sphere 
 in which we must work for development with the keen- 
 est pleasure in creation; for the future cannot arise 
 unless it is prepared by the power of the present. What 
 the present prepares with no prospect of immediate 
 realization is not work done in vain; for it lays the 
 foundations of future ages: the butterfly can only 
 evolve from the caterpillar and the coccoon. 
 
First Appendix 
 
 AUTHOR'S BIBLIOGRAPHY 
 
FIRST APPENDIX 
 
 AUTHOR'S BIBLIOGRAPHY 
 
 Badarayana: 
 
 "Sutras," with commentary of Sankara. 
 Lao-tsze: "Tao-teh King." 
 Parmenides (6th century). 
 Zeno (of Elea) (about 500 B.C.). 
 Empedocles (about 500 B.C.). 
 HeracUtus (about 500 B.C.). 
 Zeno (the Stoic) (336-264 B.C.). 
 
 Plato (427-347 B.C.): 
 
 "Dialogues"; 
 
 "Republic"; 
 
 "Laws." 
 Aristotle (384r-322 B.C.): 
 
 "Nicomachaean Ethics"; 
 
 "Politics"; 
 
 "Metaphysics." 
 
 Avicenna (980-1037). 
 Al-Gazdli (1059-111). 
 Averroes {Ibn Roschd) (1126-1198). 
 
 Anselm of Canterbury (1033-1109): 
 
 "Cur Deus Homo?" 
 Roscellinus of Compiege (11th Century) 
 John of Salisbury (12th Century) : 
 
 "Polycraticus." ' 
 Alexander of Hales (died 1245) : 
 
 "Summa Universae Theologise." 
 
 Albertus Magnus (1193-1280). 
 Thomas Aquinas (1225-1274): 
 
 "Summa contra Gentiles"; 
 
 "Summa Theologica"; 
 
 "De Regimine Principum." 
 
312 FIRST APPENDIX 
 
 Duns Scotus (1265(?)-1308); 
 
 "Tractatus de Rerum Principio"; 
 
 "Expositio in Metaphysicam"; 
 
 "Qusestiones Quodlibetales." 
 Aegydius of Colonna. 
 John of A dmont. 
 Dante Alighieri (1265-1321): 
 
 "Monarchia." 
 Marsilius of Padua: 
 
 "Defensor Pacis" (1324). 
 Dubois (13th, 14th Century). 
 Occam (died 1347). 
 
 Bernardinus Telesius (1508-1588). 
 Tommaso Campanella (1568-1630): 
 
 "Ci vitas Solis." 
 Bacon (1561-1626) : 
 
 "Novum Organon Scientiarum." 
 Descartes (1596-1650): 
 
 'Principia Philosophiae"; 
 
 "Meditationes de prima Philosophia." 
 Locke (1632-1704): 
 
 "Essay Concerning Human Understanding"; 
 
 "Two Treatises of Government." 
 Spinoza (1632-1677): 
 
 "Tractatus Politicus"; 
 
 ' 'Tractatus Theologico-Politicus. ' ' 
 Berkeley (1684^1753): 
 
 "Treatise on the Principles of Human Knowledge" (1710). 
 David Hume (1711-1770): 
 
 "Enquiry Concerning Human Understanding" (1748). 
 
 Machiavelli (1469-1527): 
 
 "Principe"; 
 
 "Discorsi"; 
 
 _"Historie"; 
 
 "Arte della Guerra." 
 Johann Oldendorp (1480-1576). 
 Bodinus {15Z0-1597): 
 
 "De Republica." 
 Albericus Gentilis (1551-1611) : 
 
 "De Jure Belli." 
 
BIBLIOGRAPHY 313 
 
 Johann AUhusius (1557-1638). 
 HugoGrotius (1583-1645): 
 
 "De Jure Belli et Pads" (1625). 
 Thomas Hobbes (1588-1679): 
 
 "De Cive"; 
 
 "Leviathan." 
 Samuel Puffendorf (1632-1694) : 
 
 "De Jure Natura et Gentium;" "De Officio Hominis et Civis;" 
 "Monzambano." 
 Leibniz (1646-1716). 
 Thomasius (1655-1728). 
 PTo// (1679-1754): 
 
 "Jus Naturae" (8 vols. 1740-1748); 
 
 "Jus Gentium" (1750). 
 Montesquieu (1689-1755) : 
 
 "Esprit des Lois" (1748). 
 
 .RTont (1724-1804): 
 
 "Kritik der Reinen Vernunft"; 
 
 "Kritik der Praktischen Vernunft"; 
 
 "Kritik der Urteilskraft"; 
 
 "Metaphysische Anfangsgriinde der Rechtslehre." 
 Fichte (1762-1818): 
 
 "Grundlagen des Naturrechts nach den Prinzipien der Wissen- 
 schaftslehre" (1796); 
 
 "System der Sittenlehre nach den Prinzipien der Wissenschafts- 
 lehre"; 
 
 "Der geschlossene Handelsstaat"; 
 
 "Die Bestimmung des Menschen." 
 Sc/>e«z«g (1775-1854): 
 
 Selected Writings, in 3 vols. (1907). 
 Hege/ (1770-1831): 
 
 "Phanomenologie des Geistes (1807); 
 
 "Philosophie des Rechts" (1820); 
 
 "Encyklopadie der philosophischen Wissenschaft" (1817, 1827, 
 1830). 
 
 Hegelians: 
 Lasson: 
 
 "System der Rechtsphilosophie" (1882). 
 Italians: 
 
 Vera, Spaventa, Fiorentino, Mariano, Croce. 
 Cf. also, Marx (1818-1883). 
 
314 FIRST APPENDIX 
 
 Schopenhauer (1788-1860) : 
 
 "Vierfache Wurzel des Satzes vom zureichenden Grunde"; 
 
 "Die Welt als Wille und Vorstellung." 
 Nietzsche (1844-1900): 
 
 "Zarathustra"; 
 
 "Jenseits von Gut und Bose" ; 
 
 "Menschliches, Allzumenschliches" ; "Der Wille zur Macht." 
 
 See also my articles in "Archiv fiir Rechtsphilosophie.'' 
 Eduard von Hartmann (1842-1906) : 
 
 "Phanomenologie des sittlichen Bewusstseins" ; 
 
 "Geschichte der Metaphysik" ; 
 
 "Grundproblem der Erkenntnistheorie"; 
 
 "Grundlegung des transcendentalen Realismus." 
 5toW (1802-1861): 
 
 "Philosophie d. Rechts" (3rd ed. 1856). 
 Kmuse (1771-1832): 
 
 "System der Rechtsphilosophie." 
 Ahrens (1808-1874): 
 
 "Naturrecht oder Philosophie des Rechts und des Staates." 
 Roder {180&-1879): 
 
 "Grundzuge des Naturrechts und der Rechtsphilosophie'' (1860). 
 
 Bentham (1748-1832): 
 
 "Principles of Legislation"; 
 
 "Theorie des Peines et des Recompenses''; "Organisation Judi- 
 caire.'' 
 Austin (1790-1859): 
 
 "Lectures on Jurisprudence." 
 Herbert Spencer (1820-1903) : 
 
 "Principles of Sociology" ; 
 
 "Principles of Morality." 
 
 Gravina (17th Century). 
 Vico (1668-1744): 
 
 'De Antiquissima Italorum Sapientia''; 
 
 "De Uno Universi Juris Principio"; 
 
 "Principi di una Scienza Nuova." 
 Genovesi (1712-1769). 
 Filangieri (1752-1788): 
 
 "Scienza della Legislazione.'' 
 Romagnosi (1761-1835) : 
 
 "Introduzione alio Studio del Diritto Publico Universale"; 
 
 "Natura e Fattori dell' Incivilimento." 
 
BIBLIOGRAPHY 315 
 
 Calluppi (1770-1846). 
 Rosmini (1797-1855) : 
 
 "Nuovo Saggio sull' Origins delle Idee'' (1830); 
 
 "Filosofia del Diritto" (1839). 
 GJoJer/i (1801-1852): 
 Mamiani (1799-1885). 
 Fulci: 
 
 "Filosofia Scientifica del Diritto" (1906). 
 
 Sanz del Rio: 
 
 "Lecciones sobre el Sistema de la Filosofia" (1868). 
 Giner de los Rios: 
 
 "Filosofia del Derecho" (1871). 
 
Second Appendix 
 
 KOHLER'S PHILOSOPHY OF LAW 
 
SECOND APPENDIX 
 
 KOHLER'S PHILOSOPHY OF LAW 
 By Adolf Lasson^ 
 
 Efforts toward a philosophical understanding of the 
 phenomena of law have not been very active in the 
 last two decades, at least not in Germany. The philoso- 
 phers who first of all were fitted for such labor have 
 had other things to do. They have been occupied with 
 theories of the validity of knowledge and empirical 
 psychology, and have been trying to find out what Kant 
 really meant to say. Any philosophizing about the 
 nature and conception of law, its significance in connec- 
 tion with the universe, and its relation to other forms of 
 the ethos must have appeared very trivial as compared 
 with such immense, fundamental problems. Hardly 
 any change in this attitude has come about, even to 
 this day, among professional philosophers. The belief 
 has arisen, however, in some quarters, that the current 
 method of epistemological and psychological investi- 
 gation has about as much utility as the effort to milk a 
 he-goat into a sieve. 
 
 Yet, the search for the real and conclusive Kant 
 interpretation is a perpetual allurement for certain 
 select spirits; and this enchantment probably will hold 
 for them its fascination for a long time to come. When 
 a substantial problem is encountered, such as the 
 
 ' A review published in "Archiv fiir Rechts- und Wirtschaftsphiloso- 
 phie," (March, 1909, Bd. II, Heft 3, pp. 318-326), translated by Albert 
 Kocourek, Lecturer in Jurisprudence at Northwestern University, and 
 editor of this volume. 
 
 > Professor at the University of Berlin. 
 
320 SECOND APPENDIX 
 
 difference between the natural and the mental sciences, 
 these investigators hold their breath, with their facul- 
 ties trained on some formula dealing with the means 
 and method of knowledge, but do not regard the real 
 meaning of the object of knowledge. Such an inquiry, 
 fearful to contemplate, would be a plunge into meta- 
 physics! 
 
 This temerity is only characteristic of the age. We 
 prefer to understand religion by means of a psychology 
 of religion, and art through a psychology of art. Every- 
 thing is resolved into a classification of the feelings. 
 Notwithstanding this, it is yet true that there are those 
 who have never classified their mental processes, and 
 have still retained their respectability. There , are, 
 likewise, others who have never regarded their feelings 
 and have considered them as unimportant for things in 
 themselves, and have passed over the accidents of indi- 
 viduality to the end that all value and effort have been 
 assigned to the function of thought and the objects 
 embraced by thought. Advancement of science is, per- 
 haps, to be sooner expected to come from persons who 
 proceed in this way. This may be true of all depart- 
 ments of knowledge, and even of Philosophy of Law. 
 We shall not make this a matter of controversy here. 
 Everyone may arrive at his own judgment as to these 
 things without too much difficulty. 
 
 In any case, Philosophy of Law, from the standpoint 
 of psychology, constructed on biological grounds (from 
 the operation of impulses and desires, and feelings of 
 pleasure and displeasure, and derived from the nature 
 of things and the application to them of the reasoning 
 faculties) is an obsolete and disaffirmed pursuit. 
 
 Instead of Philosophy of Law, sociology is now the 
 subject that engages attention. The fairness of the 
 name is thoroughly appropriate to designate the inquiry 
 
KOHLER'S PHILOSOPHY 321 
 
 to which it is attached. It will not be necessary to say 
 anything of the wonderful volume of learning produced 
 by sociological studies. The thing speaks for itself. 
 One has only to think of the deluge of books, pamphlets 
 and essays which appear year after year on these sub- 
 jects; although these efforts have more to do with 
 formulcis, methods, and conclusions than with substan- 
 tive matters. However, it is utterly indifferent if the 
 importance of these sociological investigations is rated 
 more or less. Philosophy of Law can neither be set 
 aside or strengthened by the fact; and, least of all, for 
 those who are not able to discover in the supposed con- 
 tributions of sociological thought anything more or less 
 than certain voluntary generalizations of the isolated 
 and accidental events of soul-life, such as are found in 
 the external world. 
 
 Whoever looks upon the crumpled metaphysic which 
 the sociological method of speculation seeks to con- 
 struct, as a stupid and fantastic mythology, will long 
 to escape from this mephitic atmosphere to the free air 
 of clear thought. He will prefer to hear not pf animal 
 impulses and desires, but of ideas of human reason and 
 their logical consequences. 
 
 Inasmuch as, in Germany, at least, philosophers are 
 otherwise occupied, it is fortunate that the jurist has 
 entered where the philosopher has retired. Within the 
 last decade there has been presented to us, and we 
 have gratefully acknowledged, the great, comprehen- 
 sive work of Berolzheimer, Rechts- und Wirtschafts- 
 philosophie. The book of Josef Kohler is the product of 
 the same spirit, and is the companion in purpose of 
 Berolzheimer's labor. It is entitled a treatise. While 
 Berolzheimer aims at exhaustive elaboration of his 
 subject, and seeks to cover the whole field, Kohler 
 holds himself to brief outlines. He brings out the most 
 
322 SECOND APPENDIX 
 
 essential matters, and the decisive points of view, but 
 only grazes the surface of the luxurious fullness of his 
 subject. The reader, by this method, is given a prelimi- 
 nary preparation for the consideration of this study. 
 He must be able to encompass, as a unity, the widely 
 ramified matters involved in a great and extensive co- 
 ordination of ideas. The internal value and the high 
 importance of fundamental legal institutions and legal 
 principles must be drawn in a number of prominent 
 and distinct lines, in order to make a sharp impression 
 on the mind of the learner. This survey is also of impor- 
 tance for legal science itself, to the extent that every 
 juristic construction most securely admits in individual 
 cases, of the connection of its development with philo- 
 sophical foundations. This is the purpose of this book; 
 and, in this sense, it will fulfill its purpose, and enrich 
 the literature of this subject. 
 
 With this volume, Kohler does not enter the domain 
 of Philosophy of Law for the first time. Apart from the 
 great number of his large and small works in science of 
 law, in which, at all points, he maintains the philo- 
 sophical spirit, he has written a short sketch of Philoso- 
 phy of Law as an introduction to his new form of Juristic 
 Survey, which contains many interesting ideas, and also 
 much that is too adventurous. 
 
 In his Introduction to the Science of Law (Einfiihrung 
 in die Rechtswissenschaft) which appeared first in 1902, 
 and is now in the third edition,' he set for himself the 
 task "of presenting from a high outlook-tower a view of 
 the whole science of law" — an undertaking which could 
 only be carried out with the aid of philosophy. Whilst, 
 in that work, he intends to present "a preliminary, gen- 
 eral view, and a philosophic survey of the science of 
 law to beginners of this study," yet, he addresses 
 
 3 [At this later date in the fourth edition. — Editor.} 
 
KOHLER'S PHILOSOPHY 323 
 
 himself to the whole thinking public, in the fixed con- 
 viction that "an insight into the law, and the governing 
 forces of the legal system, is as important for persons of 
 culture as knowledge of the forces of nature which 
 surround us on every hand." The result shows that he 
 has rendered a service of great value. In that "it has 
 always been his effort in all special studies never to 
 leave out of consideration the unity of these studies, or 
 the internal relations of the whole," necessarily it must 
 have been essential for him to carry out and express, in 
 systematic form, the internal relations which he perceived 
 and apprehended in them. 
 
 This treatise on Philosophy of Law is to a certain 
 extent the desired completion, and indeed the crowning 
 effort, of the immense activities of the author. The 
 great audience which has learned to value the numerous 
 works of the author in their highly diversified fields of 
 effort will gratefully acknowledge this treatise as open- 
 ing up a new viewpoint on Kohler's labors, and as dis- 
 closing the impelling motive of his scientific activities. 
 It will, at the same time, stimulate a more fundamental 
 insight into what he had already accomplished. 
 
 Kohler's position cannot be understood from an 
 external viewpoint. One must sink into his works in 
 order to understand and appreciate them. Kohler as a 
 man, as a thinker, as a scholar, and as a writer is alto- 
 gether an extraordinary personality. He is first of all 
 and chiefly a jurist, and there is no department of legal 
 science in which he has not been active in a productive 
 sense. Yet, there are branches of the science of law 
 which he has cultivated by preference, and in which he 
 has attained, by unquestioned accomplishment, the 
 widest prominence. While he has achieved fame as a 
 jurist, he has also merited distinction in the most diverse 
 other activities. No matter what he undertakes, he is 
 
324 SECOND APPENDIX 
 
 always interesting; and the tokens of a fruitful genius 
 are unmistakable in all his efforts. Even those who 
 judge him with the least amiability must admit that he 
 disseminates with a copious hand an inexhaustible full- 
 ness of ideas of the greatest value. Thus, Kohler is a 
 phenomenon of the rarest kind ; always active, a maker 
 of the greatest activity, a delver into strange things, dis- 
 tinguished as a creator, of untiring industry, and never 
 refusing a cheerful assistance. 
 
 The underlying power of his abundance, and this 
 universality of unified effort are grounded on the philo- 
 sophical nature of the man. Kohler is mentally cen- 
 tered as a jurist, but his inner nature and his boundless 
 external activities radiate out from the juristic center, 
 because he connects all with all as a philosopher. He 
 never holds himself on the periphery of the circle of 
 knowledge, but always exerts himself throughout 
 toward the central point. He places in living relation 
 every particular of every part of his investigations to 
 the highest and most ultimate problems which he 
 attempts, by his own methods, to solve. 
 
 Therefore, this jurist is not simply incidentally, but 
 by nature, a legal philosopher. The science of law is 
 the richly equipped impelling cause to bring out his 
 constructive universalism. After all, the law is the 
 fundamental phenomenon of the moral world. It there- 
 fore stands at the same time in the midst of the series 
 of the natural order of things. The law, therefore, by 
 virtue of its own nature and importance, is well suited 
 to serve as the starting-point, and as the basis of opera- 
 tion, for the most extensive entrance into the most 
 diversified fields of intellectual activity. Perhaps these 
 reflections may make more comprehensible much of the 
 amazement aroused by Kohler's peculiar genius. 
 
 It is unnecessary, for all that, to point out thatKohler 
 
KOHLER'S PHILOSOPHY 325 
 
 pursues the idealistic turn of thought. The universality 
 of his efforts is grounded on idealism. Idealism is the 
 basis of his drift toward systematic unity. Where the 
 empiricist, the realist, is contented with a mass of par- 
 ticulars which he classifies according to their external, 
 pragmatic relation, there the idealist seeks an internal 
 unity, a principle that is immanent in and penetrates all 
 isolated particulars, and which internally gives them life 
 and form. This is the method that may be emphasized 
 as distinctive of Kohler. The real is thinkable, because, 
 according to its nature, it is thought. Thought lays hold 
 of reality because they are consubstantial, and because 
 the same reason operates in thought as in the real. 
 Thus, Kohler seeks to maintain a close association with 
 the objective, with the absolute idealism of the great 
 thinkers of the classical period of German philosophy. 
 
 By preference, he makes use of Hegel. No laudatory 
 word is too full of praise, for Kohler, to distinguish the 
 fame of this forceful man who takes the same rank among 
 German philosophers as Goethe among the German 
 poets. In truth, these two men mutually esteemed and 
 honored each other as like personalities. Kohler, in 
 particular, shows the most ardent admiration for the 
 Hegelian philosophy of law (with allowances for the 
 age which brought it forth) on account of its under- 
 lying methods which scrutinized its materials with an 
 inherent reasonableness. Kohler is far removed from 
 Hegelianism in the strict sense. He would be a neo- 
 Hegelian. That which in Hegel is abstruse or too arti- 
 ficial in appearance, he would put aside. 
 
 He seeks to invigorate the chilled fancies of Hegel 
 with modern life, and to enrich and more profoundly 
 establish, with a fullness of new facts, his benumbed 
 ideas. Kohler regards the Hegelian dialectic develop- 
 ment of ideas as not the strongest, but the weakest side 
 
326 SECOND APPENDIX 
 
 of his system. He thinks that we may appropriate the 
 essence of Hegel's great ideas without taking over the 
 dry form of his too abstract, methodical process. Hegel, 
 therefore, is his model and master; but, with allowances. 
 
 This reference to Hegel does not by any means ex- 
 haust Kohler's standpoint. The harp of his system is 
 an instrument of many strings which brings out a har- 
 mony of many voices. It is remarkable to what extent 
 he is able to draw together the most heterogeneous things 
 with entire impartiality. The fact that he names Hegel 
 as his model, and in the same breath also Aristotle, is 
 natural and comprehensible, since the affinity between 
 Hegel and the great Stagirite is too conspicuous, and 
 the similarities in their treatment of law and the State 
 are too notorious to be mistaken. 
 
 One also will not marvel that a man of such vast 
 learning, a man proficient in the literatures and sciences, 
 in the customs and usages of all peoples in all ages 
 within the reach of history, should find his pleasure in 
 the wisdom of India, in Persian Sufism, in Averroes, and 
 Master Eckhart, and what goes with these things, as 
 well as the materials of a higher inspiration for the dis- 
 covery of a godliness in mankind. On the contrary, 
 one may appreciate his feelings, even if one places a very 
 high estimate on Kant's historical position, when^ 
 Kohler bluntly regards, with a kind of repugnance,' 
 Kant's open dualism and his sometimes narrow-minded 
 externality of treatment of ethical questions. Truly, 
 it is a childishly naive thought to expect those who have 
 brought their understanding of ethical things up to 
 Aristotle and Hegel, to give unlimited acquiescence to 
 the elementary Kantian examination of these problems. 
 
 The fact that Kohler's system is bottomed on the 
 German idealism of the first half of the past century 
 does not prevent him from being thoroughly modern. 
 
KOHLER'S PHILOSOPHY 327 
 
 or from employing, in any manner useful, the materials 
 brought to light in the last decades. He pursues the 
 dominion of Idea which as a formative power gives an 
 internal meaning to the impulses and efforts, and the 
 notions and purposes of man's activity, and guides them 
 toward an end. But this tendency of thought leads 
 him all the more to have a regard for the instincts of 
 the human heart, the necessities and desires, the beliefs 
 and habits which impel men to action, as well as the 
 material on which Idea manifests its force. 
 
 In this sense, he everywhere resorts to comparative 
 legal history in order to make the internal nature of 
 things more intelligible. He examines exhaustively the 
 connections between law and economic necessities, and 
 does not disdain to lay open the greater and lesser utili- 
 ties which have contributed in the creation of law, along- 
 side of the internal efficients which arise out of the 
 nature of things, and out of the comprehensive coher- 
 ence of the whole system of reality. He pursues the 
 conditions of the existence and development of law 
 which spring from social necessities with the same dili- 
 gence that he traces out the consequences of the internal 
 principle of reason and its logical consequences. That 
 which on logical grounds cannot be derived from an . 
 innate co-ordination — the directly imposed, the acci- 
 dental, the unessential in time and space, the sur- 
 rounding influences of nature and the forces springing 
 from it, human individuality, racial peculiarities, and the 
 external occurrences and fatalities in nature and human 
 life — all this receives consideration without diminish- 
 ing the great outward impulsive force of evolution which 
 towers over all these accidental phases of life. 
 
 The praise of Kohler is well deserved. He thinks 
 concretely. He does not lose himself in abstractions. 
 He sees one thing without overlooking another. His 
 
328 SECOND APPENDIX 
 
 constant effort is to grasp things in their unity. Evolution 
 is unquestionably for him the dominating factor. He 
 also has a standard for the valuation of positive law in 
 the idea of justice. He does not neglect to make promi- 
 nent the fact that ethical principles powerfully manifest 
 themselves in the law. But, the necessity of external 
 order, the requirement of having exact limits of greater 
 or less external meaning as against the internal nature 
 of social relations, and the confused complexity of con- 
 tending interests of individuals and social communities, 
 all this, in Kohler's treatment of his subject, has its place 
 and shows its influence. He does not neglect to admit 
 even the phenomena of psychology (the boundless and 
 immense multiplicity and lawless contingencies of the 
 internal world), at least not if they submit of approxi- 
 mate measurement as facts having a certain kind of 
 regularity. 
 
 He thus attains the position that the law is alterable, 
 and energetically rejects that peculiar notion which 
 assumes a fixed standard of justice in the law (richtiges 
 Rechf). He sketches (always in broad outline) the his- 
 tory of legal institutions and their unfoldment, from 
 their primitive beginnings. He follows out the cleavage 
 between substantive and adjective law, and brings about 
 an adjustment of this duality of legal aspect by way of 
 interpretation of existing law, or by the creation of a 
 new legal meaning. He clarifies the necessity of equity 
 and justifies institutions like slavery, Mutterrecht, and 
 bondage of the wife, by existing historical circum- 
 stances, economic conditions, and internal mental states. 
 It is possible for Kohler, in his view of legal institutions, 
 to turn from Hegel where he thinks that Hegel has gone 
 too far in the effort toward an ideal construction of an 
 ideal law and an ideal State. Kohler interposes the 
 elements of the illogical and the inconsistent which have 
 
KOHLER'S PHILOSOPHY 329 
 
 their undercurrent in historical development. Objec- 
 tively he is right; but controversially he, perhaps, does 
 not do full justice to the real doctrine of Hegel. 
 
 It is in harmony with Kohler's standpoint as to the 
 concrete that he does not rest his position on an external 
 scaffolding erected principally on a systematic founda- 
 tion, but limits himself to the utmost in his discussion 
 of first principles. We gather from him that the law, 
 as well as all ethical things, is based on the ultimate, 
 ideal destiny of humanity; that the establishment and 
 maintenance of culture and the attainment of a perma- 
 nent cultural value are the mission of mankind. But, 
 he does not tell us what culture and cultural value are.^ 
 
 He sets this out as understood and assumed. That 
 law and custom, morals, and, finally, ethics (as the last 
 ideality of the internal life) are related, appears through- 
 out his writings; but the differences and similarities of 
 these various fofms of ethical determination of the will 
 are, as a rule, not touched upon. The superstructure 
 and the arrangement of this philosophy of law are 
 systematically planned, but the foundations of this 
 construction are not sketched. 
 
 There is a general part in Kohler's book which is, 
 as it were, an introduction to philosophy of law, cultural 
 evolution, and the relation between law and culture 
 and legal order and legal technic. Then, there is a 
 special part dealing with the law of the individual and 
 the body politic. Under the law of the individual, he 
 
 * [This assertion has gained wide currency among Kohler's reviewers. 
 It is stock criticism which seems to have prospered rather by adoption 
 than independent knowledge of Kohler's writings; and Kohler finds it 
 necessary repeatedly to go over his ground. "The essence of culture," 
 says Kohler, "in the sense of Philosophy of Law, is the greatest possible 
 development of human knowledge, and the greatest possible development 
 of human control over nature." — "Vom Positivismus zum Neu-Hegel- 
 ianismus" in "Archiv fiir Rechts- und Wirtschaftsphilosophie," Bd. Ill, 
 Heft 2, (January, 1910). —Editor.] 
 
330 SECOND APPENDIX 
 
 considers the law of persons and property law. Family 
 law is a division of the law of persons. The law of prop- 
 erty is divided into the law of ownership and the law of 
 obligations; and a third division, "property as a whole" 
 is added, under which the law of inheritance is specially 
 treated. The law of the State and international law fall 
 under the division of the law of the body politic. 
 
 No doubt there may be various objections to this 
 classification, even from the point of view of an eiScient 
 co-ordination of legal notions and legal institutions in 
 detail; and, even more, from the standpoint of a syste- 
 matic development of this plan. Such a classification as 
 Kohler's is perhaps sufficient to make comprehensible 
 and distinct the detailed phenomena of the law in even 
 a less coherent treatment. 
 
 Kohler has deliberately refrained from setting out 
 prominently the principles for the valuation and estima- 
 tion of the materials of the law. Accordingly, they are 
 found extended throughout the whole work in separate 
 observations; and it is the reader's task to discover 
 from them the internal volume. One may also find in 
 this work the tribute which the contemporary prefer- 
 ence and habit of the modern legal philosopher pays, 
 as against the more tense and also more arid methods 
 of earlier times. 
 
 And now, there should follow a detailed discussion 
 of the philosophical views and results which have been 
 brought out by Kohler's book. But, here the reviewer 
 encounters difficulties. Many, many years ago the 
 writer himself published a book under the promising 
 title, "System of Legal Philosophy." Some may yet 
 recall it. Up to this time, I had hardly hoped to find 
 for it any warmth of reception, and its influence has very 
 rarely come to my notice. This work has now dis- 
 appeared from the shelves of the book-dealer, and 
 
KOHLER'S PHILOSOPHY 331 
 
 perhaps has also sunk into oblivion in the recollection of 
 men. I would be glad to console myself with the thought 
 that the style of the book was too old-fashioned. I had 
 sought to travel again in the paths laid out by Aristotle 
 and Hegel. Kohler, in his own way, has done the same 
 thing, but with greater cleverness, and with a closer 
 contact with modem ideas and modern demands. 
 Naturally, therefore, I defer to him. Kohler in his book 
 had the immeasurable advantage of being able at all 
 points to refer on decisive points to his own special 
 juristic investigations. While I have had a juristic 
 training, yet I have been occupied principally with 
 systematic philosophy; and I am not able to claim any 
 special scientific learning either in the law or any other 
 special department of knowledge, with all of which one 
 so ill-equipped will have to struggle in the treatment of 
 unified knowledge. Nevertheless, whatever the writer 
 might be able to offer in the way of criticism of Kohler's 
 treatise already lies open in the writer's book, and 
 nothing is so wearisome as repetition. It would also 
 be ill-wrought to intrude on a public with a right to new 
 ideas what has long since been advanced. 
 
 Kohler and I are agreed on many leading and funda- 
 mental ideas upon the ground of a sameness of starting- 
 point, and of authorities which we esteem in common. 
 In method and construction, as well as in the explana- 
 tion of many detailed matters, Kohler and I are essen- 
 tially apart. Where Kohler represents ideas which fall 
 in with mine, I find in the concurrence of this distin- 
 guished man a highly valuable confirmation of my own 
 fixed beliefs. Where Kohler differs from me, naturally 
 it is my thought that I am right, and that he can do 
 nothing better than return to my notions. It is unlikely 
 that I shall change my mind. Those who possibly 
 may assert that I am altogether beyond conviction do 
 
332 SECOND APPENDIX 
 
 me an injustice; but, in this case, I have found in fact 
 no occasion to alter, in any essential way, my previous 
 views. The opposition against what does not satisfy 
 me in Kohler concerns a position taken many years ago, 
 and I may be spared the task of quarreling with this 
 eminent jurist about various points of view and results, 
 in view of the fact that, as a whole, I regard this work 
 as deserving of the highest praise. 
 
 Indeed, the work as a whole is in my judgment entitled 
 to a cordial reception. It is the result of the ripe reflec- 
 tion on the ultimate facts of legal order of a profound 
 and learned expert and master — the expression of a 
 noble purpose and done with a skilled hand. This 
 treatise is a thoughtful effort, designed to bring out to 
 the beginner in this science, in broad outline, the forma- 
 tive reason in the phenomena of law expressed in the 
 external and human world ; and to give with a fullness 
 of materials, and their scientific ordination, an intimate 
 and rich suggestion toward a more profound knowledge 
 of the internal relation of the facts of legal life. It will 
 be a desirable thing if this treatise may be able always 
 to maintain a prominent place in literature, and in the 
 interest of the public. A multitude of ideas which have 
 become lost to the sociological group of thinkers of today 
 may be made accessible through the receptivity of this 
 book to modern conditions, and thus may with a vigorous 
 impulse prepare the way for social advancement. 
 
Third Appendix 
 
 KOHLER'S PHILOSOPHICAL POSITION 
 
THIRD APPENDIX 
 
 KOHLER'S PHILOSOPHICAL POSITION » 
 By J. Castillejo y Duarte ' 
 
 Kohler's position in philosophy is not easy to under- 
 stand. In his writings, Sankara, Heraclitus, Plato, the 
 Neo-Platonists, Spinoza, Schelling, Hegel, Savigny, 
 Schopenhauer, Darwin, and Nietzsche pass rapidly in 
 review. It is necessary, in considering this author, 
 sometimes to deal with diffuse ideas and allusions; with 
 general formulas, examples, and figures of speech. 
 Kohler has not yet presented a systematic body of 
 philosophical doctrine which aims to resolve with a cer- 
 tainty of consequence the fundamental problems of 
 knowledge, nature, the law, art, etc. His standpoint 
 at this moment appears to be based on a series of affir- 
 mations drawn from many different points and tending 
 to a common center. 
 
 It is impossible, therefore, to be assured that we have 
 found in Kohler's works the seed of a doctrine destined 
 to grow and survive; much less, to foresee its definite 
 structure at maturity. 
 
 The design, however, of searching in a new avenue of 
 approach for a solution of the always-new enigma of life, 
 with the view of arriving at a completer cultural organi- 
 zation, inspires extraordinary interest, especially when 
 
 > Introduction to "Filosofia del Derecho € Historia Universal del 
 Derecho," per J. Kohler, in "Biblioteca del Derecho y de Ciencias So- 
 ciales," VictorianoSuarez, (Madrid, 1910) translated hy Albert Kocourek, 
 Lecturer in Jurisprudence at Northwestern University, and editor 
 of this volume. 
 
 > Professor at the University of Valladolid. 
 
336 THIRD APPENDIX 
 
 the problem is undertaken by a man of such unusual 
 learning. 
 
 If one philosophic position is ascertained from which 
 a concrete notion may be derived, then no doubt is left 
 as to the rest. Kohler has accepted in these latter 
 years for his doctrines the designation "Neo-Hegelian- 
 ism." Among the representatives of this new school, 
 with views more or less divergent, are Berolzheimer, 
 Croce, and Mackenzie. 
 
 Philosophy, for Kohler as for Hegel, involves interpre- 
 tation of universal values in science, and their relation 
 to the evolution of the AH. It deals with the transcen- 
 dental and the metaphysical.' 
 
 This being admitted, what are the foundations in 
 philosophy of Neo-Hegelianism ? What does Kohler 
 take from Hegel, and what does he add to him? How 
 does he reconcile his views with the scientific postulates 
 of the last hundred years? 
 
 It is certain that Hegelianism, like any other concept 
 which goes to the depths of human thought, represents 
 only a fundamental tendency of which its founder is 
 not the sole depositary, but rather one of many, even 
 though, perhaps, its most eminent representative. The 
 more profound a concept, the greater is its power to 
 nourish secondary outgrowths which ramify in the most 
 conflicting directions, without anything in common 
 
 ' The traditional and the newest views unite in identifying meta- 
 physics and philosophy. Another standpoint (Aristotle, Leibniz, 
 Krause) conceives philosophy to be a department of science, as contra- 
 distinguished to history. Descartes on the other hand opposes philoso- 
 phy not to history but to science. Likewise, Spencer regards science as 
 unified knowledge of particular objects, and philosophy as unified total 
 knowledge. In Comte, the distinction between science and philosophy 
 is less precise. It appears that his philosophy has the mission of build- 
 ing up the Encyclopedia; but his positivism (as in the case of Spencer 
 and Stuart Mill) coincides with Aristotle, the Scholastics, and Hegel in 
 affirming that there can be no science of empirical particulars, but only 
 of the general. 
 
PHILOSOPHICAL POSITION 337 
 
 except the primary impulse which vitalizes this deriva- 
 tive movement. What would Spinoza and Leibniz say 
 to being denominated Cartesians? 
 
 From Hegel there sprung a conservative or orthodox 
 section of thinkers who sought to keep faith with the 
 system of the Master, holding to his metaphysics, and 
 preserving his dogmas in religious inquiries (Vera, Spa- 
 venta, Gabler, Hinrichs, Goschel). A radical left wing 
 also rose up which declared that faith was incompatible 
 with science (Ruge, Strauss, Feuerbach, and the Hal- 
 lische Jahrbticher). The left wing did not halt at posi- 
 tivism and historical materialism (Marx); it went as 
 far even as the most gross form of anarchistic individual- 
 ism (Stirner). Proudhon, who was under the influence 
 of disciples of the extreme Hegelian Left, considered the 
 realization of perfection to lie in the total abolition of 
 the State. 
 
 Kohler thinks that none of the followers of Hegel has 
 succeeded in finding the road upon which the Hegelian 
 system can follow its unfolding course, except that per- 
 haps some of his disciples, especially the Italians (Spa- 
 venta. Vera, Croce), have arrived at a more secure 
 orientation. 
 
 Kohler's Neo-Hegelianism requires the reaffirmation 
 of the substance of the philosophy of Hegel, and the 
 repudiation of its form.* It requires the conservation 
 of two fundamental ideas, pantheism and evolution, 
 and the passing-over of the dialectical method as a 
 mere ornamental device. The dialectical process is 
 simply a form of making tangible to our understanding 
 the idea of evolution.^ The Eleatics, Descartes and 
 
 *Berolzheimer, "J. Kohler als Rechtsphilosoph," in "Philosophische 
 Wochenscrift" (Leipzig), 1906, No. 1. 
 
 » Kohler, "Neuhegelianiamus," in "Archiv fiir Rechts- und Wirt- 
 schaftsphilosopiiie" (Berlin and Leipzig, Rothschild) Jan., 1908. 
 
338 THIRD APPENDIX 
 
 Spinoza, struggled with the impossibility of reconciling 
 the principle of constant change with the principle of 
 eternal being. According to Hegel, change arises from 
 the union of being and non-being, and he therefore char- 
 acterizes evolution as the fountain of possibilities from 
 which all particulars emanate.^ This was his great dis- 
 covery, although Lao-tsze had already preceded him in 
 asserting that universal being acquired an importance, 
 when out of its abundant possibilities a series of particu- 
 lars arises and is realized. 
 
 The dialectic process, however, which attempts to 
 explain change, and to indicate the function of evolution 
 in the world, is not able to apply itself to the discovery 
 of particular determinations. 
 
 Philosophy, doubtless, is able to interpret d priori 
 the laws of being, and even can give us with a certain 
 amount of probability some of the final results of becom- 
 ing; but, beyond this, d priori speculation ceases to 
 have any utility, and we are thrown back upon observa- 
 tion.' Neo-Hegelianism "takes from Hegel the idea of 
 evolution; it unites the doctrine of Heraclitus with the 
 teachings of the Eleatics, and connects the Sinkhya school 
 with that of the Vedanta system; it accepts Platonism 
 insofar as it admits an ideal background beyond reality; 
 it departs from the epistemological doubt of Kant in 
 affirming a correspondence between our consciousness 
 and the world-process as parts of one and the same 
 unity (in accordance with Tommaso Campanella); it 
 substitutes for the uniformity of Spinoza's system a 
 fullness of life; and puts in place of the Hegelian schema- 
 ticism (which seeks by dialectical perversion to evolve 
 the world from an idea) a living reality." * 
 
 Hegel's great distinction lies in his conception of the 
 organization of humanity as a moral unity in which 
 
 « Kohler, loc. cit. ' Kohler, loc. cit. ' Kohler, loc. cit., p. 231. 
 
PHILOSOPHICAL POSITION 339 
 
 there is displayed a permanent energy and an eternal 
 life. This unity occupies in its evolution an intermediate 
 position between the dry Allness (Allsein) of the Eleatics 
 and the fluid continuity of the Jains represented in 
 Indian philosophy by the Vedanta and the Sankhya 
 systems. All things must change in order that the 
 thought eternal may come to light. Since time is nothing 
 other than the eternal in its movement, these eternal 
 ideas cannot unfold themselves in time except in the 
 form of movement — a. movement that is progressive 
 and not destructive. 
 
 Evolution is the history of the super-historical; it 
 is historical by virtue of its temporal operation; it is 
 super-historical by reason of the unity lying at the 
 basis of its movement, which develops at the last only 
 what was in existence at the beginning.' 
 
 Another important central thought of the Hegelian 
 system, the principle of identity, is also fundamentally 
 modified by Kohler. Kohler, while admitting a tran- 
 scendental reality behind the phenomenal world, com- 
 bats the Kantian doctrine, holding that it involves the 
 annihilation of philosophy. As already stated, he identi- 
 fies metaphysics and philosophy, but in the determina- 
 tion' of the nature of ultra-phenomenal reality he 
 abandons the Hegelian panlogism. 
 
 Fusing the problem of metaphysics with the problem 
 of knowledge, he says that for the purpose of attaining 
 an understanding of the objective world it is necessary 
 that there be no unbridgable abyss between mind and 
 being but that our entire activity, so far as it generates 
 laws and ideas, must have a co-ordination with the facts 
 of nature. But here, he adds, it does not follow that the 
 relation between the subjective and objective is one of 
 
 ° Kohler, "Wesen und Ziele der Rechtsphilosophie," in "Archiv," etc., 
 (October, 1907), I, p. 3. 
 
340 THIRD APPENDIX 
 
 identity; that being is not the same as thought, and 
 that thought is not the same as being; but that both 
 meet on a superior level like two planes which unite in 
 one line.'" 
 
 Neo-Hegelianism does not confine the whole of objec- 
 tive existence within the matrix of thought. According 
 to this doctrine, thought and being unite in their ulti- 
 mate extension ; in this, that on one hand, the principles 
 of reality have a certain contact with the principles of 
 thought; and on the other, that the final ends of reality 
 have a relation to human aspirations. Neo-Hegelianism 
 seeks to unify the infinity of external facts with the 
 profundity of speculative thought and the objects of 
 humanity's most cherished desires." 
 
 Inasmuch as the Hegelian philosophy did not follow 
 this course, it was not able, according to Kohler, to 
 resist the assault of the natural sciences and the volun- 
 tarism of Schopenhauer. To avoid this, it was neces- 
 sary for Neo-Hegelianism to escape two errors: the 
 reduction of the phenomenal world to mere appearance 
 (as was done by Schopenhauer), and the belief that 
 metaphysics is able to exclude the special sciences, and 
 accomplish by its own conceptions that which experience 
 sought to attain only by the most laborious effort. 
 
 Our ideas and the universe being separated, according 
 to Kohler, he does not abandon the world as inert matter 
 but assigns to it a certain spiritual content — a kind of 
 unconscious intelligence (perhaps similar to the Schel- 
 lingian idea of nature) — which manifests itself in the 
 tendency toward an end in a course of rational progress 
 and evolution. Against those who conceive that the 
 two concepts "progress" and "rational" are simply 
 mental representations, he insists that to identify our 
 thought with the idea of the universe is to return to the 
 
 " Kohler, loc. cit. " Kohler, loc. cit., pp. 11-12. 
 
PHILOSOPHICAL POSITION 341 
 
 Scholastics, who attribute to the Divinity a mental 
 process like our own. 
 
 Neo-Hegelianism does not seek, as Hegel does, to 
 infuse into the evolution of the world the categories of 
 reason, without learning through the medium of experi- 
 ence, the laws of universal evolution in human culture. 
 It is possible to discover the fundamental lines of evolu- 
 tionary progression only on empirical highways. Kohler 
 accepts from Hegel his theory of evolution, the idea of 
 unity in plurality, and the relativity of time (as d priori 
 concepts) ; but seeks to put into these ideas a content 
 (which was yet lacking in Hegel's time) derived from 
 experience and a study of civilization. The rational 
 character of a world of reality is his metaphysical start- 
 ing point. 
 
 The regularity of the rational process can only 
 be valuated in long periods of time. Neo-Hegelianism 
 takes as the object of its investigation the infinite 
 variety of particulars which constitute universal history. 
 It recognizes, however, behind these particulars, a great 
 All, unlimited by time or space, which manifests itself 
 in time as human culture, and which unfolds itself in 
 obedience to determinate laws. Thus, the reason of 
 Hegel is converted into culture; and the dialectical 
 method is transformed into a history of civilization 
 which is not a chaos of particulars, but a process of 
 change in the service of a supreme end.'^ 
 
 The evolution of universal history, according to 
 Kohler, is not as logical as was thought by Hegel, and it 
 does not always play its themes in three acts. On the 
 contrary, history exhibits many illogical and disturbing 
 pathological elements which do not coincide with evolu- 
 tion, but run counter to it. 
 
 i« Kohler, "Moderne Rechtsprobleme," (Tuebner, Leipzig, 1907), p. 9, 
 et seq. 
 
342 THIRD APPENDIX 
 
 The force of history lies in this : that ultimately rea- 
 son always conquers (optimism). Its progress is certain, 
 but it operates in a complex and variable manner. 
 
 The Hegelian process of Idea, so far as it relates to 
 mankind, changes to a process of Culture. 
 
 Kohler attacks the problem of knowledge as a rela- 
 tion between subject and object. He inquires if there 
 is in fact behind our representations of the world a 
 reality which would exist even though we did not exist, 
 and as to the relation of this reality to our representa- 
 tions.^' 
 
 The hypothesis that our perception of the world does 
 not correspond with the reality leads, according to 
 Kohler, to the emptiest scepticism. The problem of 
 knowledge cannot be resolved by the data furnished by 
 the senses, but only by philosophy. Critical realism, 
 which had already been advanced by the ancients, was 
 attempted by such thinkers as Campanella, and furthered 
 by the Scotch Sceptics. It culminated with Kant, but 
 instead of finding a solution, attained its most acute 
 form. Dualism has been vanquished by the philosophy 
 of identity (Fichte, Schelling, Hegel). The ego and the 
 non-ego appertain to the same universal All, and they 
 must be coincident. The contrary can only be relative 
 and momentary. 
 
 According to Kohler, Kant exaggerates the difference 
 between subject and object. For him (Kant) the subject 
 has a place at the front of the world's stage and his 
 mental faculties reach no further than phenomena. He 
 is not in a position to know what moves behind the scenes. 
 
 Since Kohler accepts the principle of identity only 
 in part, he is obliged to find a basis of knowledge. The 
 Kantian notion of thing-in-itself appears to him to be 
 
 ""Moderne Rechtsprobleme," p. 3 et seq.; "Lehrbuch der Rechts- 
 
 philosophie, " p. 6 et seq. 
 
PHILOSOPHICAL POSITION 343 
 
 valid to the extent that all influence over the subject is 
 explicable only so long as subject and object are not 
 identical, and that object makes an impression on 
 subject. This impression is our representation of 
 the world. There can no more be an absolute simi- 
 larity between our impressions and the world than 
 there can be a sameness between a mould and its 
 image." 
 
 The difiiculty, of course, lies in ascertaining the 
 point of correspondence ; since it is clear that it is neces- 
 sary to know and to compare the two involved ideas: 
 the image, that is to say, the impression, and the mould, 
 that is to say, the reality. The inquiry turns back 
 upon itself in infinite succession. Kohler accordingly 
 deals with only one of these ideas, the subject. He says 
 that the mind is capable of cognizing its perceptive facul- 
 ties, and the manner in which they operate when receiv- 
 ing external impressions. He further asserts that the 
 effect of these diverse external impressions is to deter- 
 mine and make permanent the notion of subjectivity 
 as opposed to the objective world. We are also able 
 to demonstrate in the case of other rational entities 
 in what manner their faculties operate, and how the 
 matrix of thought is influenced from without. Em- 
 ploying another metaphor, Kohler says that images 
 are painted on the canvas of our subjectivity, and that 
 this canvas has a definite structure which we are able 
 to know and reckon with, in a determination of what 
 is subjective and what is not. He seeks, therefore, to 
 distinguish the objective in knowledge by means of 
 subtraction of the subjective. It does not appear to 
 be clear here how knowledge of our perceptive faculties 
 and of ourselves is going to escape the problem of 
 Criticism. 
 
 " "Lehrbuch der Rechtsphilosophie," p. 8 et seq. 
 
344 THIRD APPENDIX 
 
 By another route — the HegeUan doctrine of iden- 
 tity — Kohler seeks a solution of the problem of know- 
 ledge, perhaps better fortified. The results of our 
 thinking coincide with the external world. The exter- 
 nal forces which impress us operate in the same way 
 that our thoughts tell us, provided that we do not 
 err in our perceptive premises, and arrive at no false 
 conclusions. This results neither from a pre-estab- 
 lished harmony nor from causality, but as a consequence 
 of our being a part of the world against which we stand 
 in opposition only momentarily. We are part of a 
 machine, and its movements must be in harmony, so 
 long, at least, as the machinery is in order and does 
 not exhibit pathological defects. Thus, the exactitude 
 of the mathematical axioms, the coincidence of the 
 law of causality within and outside of ourselves, and 
 all the categories of Kant, are explained. If metaphy- 
 sical truth is not attainable by our intuition, yet it is 
 within the compass of our reason.'^ 
 
 Time and space are not, for Kohler, simply an appear- 
 ance (Schein), but are a reality (Wirklichkeif) . In this 
 view he rejects alike the idea of Sankara, that they 
 are illusions, and of Kant, that they are d priori forms 
 of the subject. 
 
 The reality of time and space, he holds, are relative 
 because there is behind temporal and spatial evolu- 
 tion a background which is beyond space and time. 
 In the same way, the plurality of being is absorbed 
 in a unity by means of the law of causality. 
 
 Kohler's effort is to incorporate the historical and 
 positivistic results of the last hundred years into a 
 philosophical system of Hegelian pantheism; but he 
 has to such an extent attenuated the doctrines of Hegel 
 and admitted with so much generosity the ideas 
 
 " "Lehrbuch der Rechtsphilosophie," loc. cit. 
 
PHILOSOPHICAL POSITION' 345 
 
 accepted from him, that certain doubts as to his posi- 
 tion are unavoidable. 
 
 If we eHminate the results of modern science, and 
 those ideas which no philosophical system is any longer 
 able to accept, what is left will be the notion of con- 
 tinuous change — decomposition and re-composition — 
 dominated by an immanent reason (Heraclitus) ; or 
 the world-creative idea of Plato; or the entelechy of 
 Aristotle, operating on things as a teleological impulse; 
 or the universal being of Spinoza, to which there is a 
 present tendency to revert; or the original being of 
 Schelling (in its stage of identity); or, perhaps, the 
 Idea of Hegel reduced to a subjective abstraction, in 
 the sense of the extreme Hegelian Left. 
 
 It is very difficult to find the root of Kohler's pan- 
 theism, not alone because he has substituted for the 
 Idea of Hegel a somewhat vague element which he calls 
 Culture, but also because his point of view respecting 
 the personality of the Deity is not clearly stated. This 
 is true notwithstanding that at times one may note 
 a providential factor, a force which appears to energize 
 the world from without, serving as its model, or driv- 
 ing it along a determinate course. This notion in- 
 volves vestiges of the Christian (Catholic) doctrine, 
 confined principally to the realm of the feelings and 
 the imagination. One is led to suspect that his reli- 
 gious views in their dual contact with Buddhism and 
 Christianity approximate the concrete monism of Hart- 
 mann. 
 
 Neither is it possible to assign to Kohler a place 
 among the other followers of Hegel; because at times, 
 for example, he inclines to the Right, upholding the 
 metaphysical view, and combats the materialistic 
 conception of reality; and at other times, in asserting 
 an extraordinary preponderance for history and a world 
 
346 ' THIRD APPENDIX 
 
 of limits, he appears frankly to align himself with the 
 Left. 
 
 Kohler seeks to throw aside the abstract principle 
 of Hegel's philosophy (the dialectic process), but 
 conserves beyond question in his system an abstract 
 foundation (the notion of evolution and progress which 
 is more than mere change, in that it signifies intelli- 
 gent direction). But, while it is doubtful whether Hegel 
 extracted evolution from the metaphysical order to 
 apply it to the notion of time, Kohler resolutely iden- 
 tifies it with historical development. He rejects the 
 opinion of Stahl, who considered the dialectic process 
 as an essential element of the Hegelian philosophy, 
 and mitigated it for the epoch in which Hegel lived. 
 
 Nor does Kohler hold to the rationalism of Hegel 
 and affirm it for his age. He is not an intellectualist. 
 He rather takes a position which has a certain corres- 
 pondence with that of Lange. 
 
 Against the dualism ascribed to his system, between 
 the historical world of experience and the world of 
 ideas, Kohler asserts a unity of the rational idea and 
 reality, in that the complex of particulars of the world 
 is simply the emanation of divine thought.*^ 
 
 Kohler's place in metaphysics resembles, by analogy, 
 that of Wundt, who like Fouill6e, attempts a metaphy- 
 sical theory based on experience. For Wundt, meta- 
 physics is the final hypothesis admitted in the present 
 state of the empirical sciences; it is an evolutive 
 construction. Wundt, however, contrary to Kohler, 
 does not concede a metaphysical object, or absolute 
 being. 
 
 Kohler's method of presentation of his system is in 
 common accord with the spirit which seems to domi- 
 nate modern philosophy. The past few years have 
 
 '• "Moderne Rechtsprobleme," p. 11 
 
PHILOSOPHICAL POSITION 34r 
 
 witnessed an expansive intellectual movement, and a 
 popularization of knowledge comparable to the age 
 of the Sophists and the Encyclopedia. Philosophy 
 has ceased to belong to the institutions of learning and 
 to the learned; it has become the possession of the 
 world, and an object of common knowledge. 
 
 The extension of philosophical knowledge attracts 
 other pursuits from the retreat of professional seclu- 
 sion and the refuge of closed doors. The Sophists spread 
 philosophy among the upper classes, but Socrates 
 carried it to the street. Plato, in turn, confined it to 
 the Academy, and again made it professional. The 
 popular, dilettante, and propagandist philosophy of 
 the time of the Aufkldrung, which was represented in 
 different ways by Rousseau and Wolff, was succeeded 
 by the intensive reconcentric labor of Kant and Hegel. 
 
 The current age has laid hold of the philosophies 
 of Kant and Hegel, dragged them from their sanctuary, 
 and cast them before the world. It has done this appar- 
 ently only to destroy, but in reality to bring these phil- 
 osophies into the fullest contact with life." 
 
 This assimilation has resulted in much good, but it 
 has also had its price in a certain inconsistency, and 
 certain defects of logic which characterize modern 
 philosophy, after the manner of the eighteenth century. 
 
 Kohler's theory of law is more fully developed than 
 his philosophical system. This is true, not only on 
 account of the substantive content possible in his theory 
 of juridical culture, but, perhaps, more especially, be- 
 cause it embodies, in diverse aspects, modern scientific 
 aspirations. 
 
 It is interesting to note in this connection that the 
 philosophical part of the Juristic Survey of Holtzen- 
 dorff was first committed to a Krausean, Ahrens; 
 
 " Vide, Croce, "Ci6 ch'e vivo e cio ch'6 raorto nella filosofia de Hegel.' 
 
348 THIRD APPENDIX 
 
 afterward to an Herbartian, Geyer ; later to a positivist, 
 Merkel; and finally, as by way of reversion, to close the 
 circle, to an idealist, Kohler."^^ 
 
 It may without doubt be asserted that it was not 
 simply his pantheism, nor yet alone his spiritual idealism 
 which has brought Kohler to the position taken by 
 him; but rather the coincidence of other influences 
 which distinguish the age. These influences are the 
 reconstruction and advance of a conquering positi- 
 vism; the acceptance of evolutionary ideas; the uni- 
 versal and scientific character of comparative law; 
 the desire to conciliate the struggle between monism 
 and dualism; the polarity of moral ideas; the place 
 assigned to culture in history; and the infiltration of 
 an ethical ideal into the entire juridical groundwork of 
 life. 
 
 Where Kohler appears to have departed from the 
 path indicated, as in the problem of the functions of the 
 judge and in the nature of punishment, his theory has 
 found little echo. 
 
 The whole movement of modem philosophy of law, 
 considered in the totality of one of its most character- 
 istic aspects, represents a fusion of the ideas dominant 
 in the eighteenth and nineteenth centuries. 
 
 In the eighteenth century the current of thought 
 which has received the name dualism reached its great- 
 est perfection. It produced a conception of law as 
 something universal, perfect, immutable, absolute, and 
 eternal, as distinguished from another law that was 
 contingent, relative, established, or imposed. This 
 
 " [Vide, HoUzendorff, "Enzyklopadie der Rechtswissenschaft." 6th 
 rev. ed. (Duncker und Humblot, und J. Guttentag, Leipzig and Berlin, 
 1904),whicii contains Kohler's monograph above referred to — "Rechts- 
 philosophie und Universalrechtsgeschichte." For a list of the literature 
 of Juristic Survey, see Gareis, "Introduction to the Science of Law" 
 (Vol. I of this series), The Boston Book Company, 1911, p. 27. — Editor.] 
 
PHILOSOPHICAL POSITION 349 
 
 unchangeable law was thought to be immediately appli- 
 cable to social relations in every country and in every 
 age. 
 
 Nevertheless, the sharp-edge of the dualism of Wolff 
 or Kant, which was the product of an old process of 
 ideas, did not hew the line of an epoch in philosophy 
 except to mark the boundary of another age of thought. 
 While dualism appears to have been finally cast aside, 
 yet from its fundamental idea new forms of thought 
 have arisen. 
 
 Among the incipient forms of philosophic thought 
 which preceded the culmination of dualistic speculation 
 or the attenuated variations which followed it, there 
 are extremities of shading, so that it is impossible to say 
 Avith precision whether they should be denominated 
 dualistic theories or not. This doubt exists even with- 
 out going to the extreme of a Bergbohm, according to 
 whom, no one is wanting in contact, to a greater or less 
 extent, with dualistic contagion, unless it is himself.'^ 
 
 The eighteenth century with Montesquieu, Wolff, 
 the Encyclopedists, Rousseau, and Kant presents the 
 culminating point of a curve which surveys the whole 
 historical evolution of the Philosophy of Law. This 
 curve exhibits a continuous series of shifting positions 
 so that only observations of the greatest generality 
 have a common point of view. 
 
 Among the Greeks, Philosophy of Law appeared to 
 attach itself to the inquiry as to whether legal standards 
 were natural or artificial products; whether the dis- 
 tinction between justice and injustice proceeded from 
 nature, or the laws and customs of the people. In the 
 language of our day, the question was whether law had 
 a metaphysical basis. 
 
 " Not even he is free from it, according to Neukamp. Stammler, also 
 intimates that an exposition of Bergbohm's system discloses dualism. 
 
350 THIRD APPENDIX 
 
 One group (Archelaus, Protagoras, and other Sophists) 
 regarded justice as a category created by the laws. 
 Another group (Hippias, Callicles, and another divi- 
 sion of Sophists) declared that positive laws were con- 
 trary to nature. Aristotle clearly formulated a dualistic 
 theory of justice. He held that there is an immutable 
 law which is the product of reason, common to all men 
 and universal; but without constructing a code of this 
 law after the fashion of the eighteenth century. His law 
 of reason was rather a living law like the jus gentium 
 of the Romans. 
 
 Man, however, has a relation that is other than uni- 
 versal. His activities exhibit particular relations to 
 which the application of this universal law is insuffi- 
 cient. There is another positive constituent of total 
 living law which does not appear to arise from an uni- 
 versal and common source (reason), but which is 
 generated by an historically circumstantial agency, 
 the will. 
 
 Aristotle's dualism, therefore, is not based on a 
 divine plan (as was the case with St. Augustine, who 
 Christianized Plato); nor is there in his system a 
 rational order of justice which the world must approxi- 
 mate. The universal element of human reason cannot 
 govern the totality of life's activities, but must leave 
 them in part to the influence of other forces. There 
 is, therefore, no opposition between two codes — one 
 a perfect and rational order, and the other an imper- 
 fect and positive system (Wolff). There is not even 
 a competing double standard of certain eternal ideals, 
 and a mutable and historical reality which seeks to 
 approximate the former (Ahrens) ; nor even yet a two- 
 fold order consisting of an absolute principle qualify- 
 ing the just and a series of relative propositions which 
 are measured by the absolute (Stammler). Natural 
 
PHILOSOPHICAL POSITION 351 
 
 law and positive law are two parts of the same active, 
 unified reality. 
 
 The Middle Ages rejected the immanence of ends 
 in the world and consigned this finality to an exter- 
 nal abiding place. St. Thomas combined the theory 
 of Aristotle and that of the Roman jurists with the 
 philosophical doctrines of the Church Fathers. Nat- 
 ural Law is now thought to arise from divine reason 
 (from divine will, according to Scotus), and consists 
 only of certain basic principles. Positive law has the 
 mission of elaborating the natural law for man, through 
 practical reason, by concrete application to the activ- 
 ities of life, according to its circumstances and con- 
 ditions. There are certain standards of positive law 
 which are not derived from Natural Law, and which 
 even conflict with it. This proposition is the Aris- 
 totelian dualism. The positive laws which contradict 
 the Natural Law are unjust; they have no force. 
 
 Neither Grotius nor his followers changed the fun- 
 damental aspects of the Natural Law problem. What 
 they did was to divorce law and theology, to elevate 
 the function of reason, to secularize law, and to eman- 
 cipate it from divine will, religion, and the Church, in 
 an effort to derive the standards of law from the pro- 
 cesses of the human mind. Their effort was to make 
 all positive law natural, thereby destroying every 
 legitimate premise of pure history. Thus, the way was 
 made for the revolution. 
 
 This speculation marked the culmination of dualism. 
 All legal standards were derived, by a fettered logic, 
 from the reason. There did not remain any necessity 
 to supply it with the empirical experience of the exter- 
 nal world. These standards were regarded as absolute, 
 immutable, and universal. They were the impera- 
 tives of a light of reason which could be seen with 
 
352 THIRD APPENDIX 
 
 equal clearness by all men. They constituted the 
 limits of an abstract liberty. Legislation (the perfect, 
 unified form of positive law) was thought to have no 
 other object than to express the commands of reason. 
 Positive law, however, does not in all respects coincide 
 with the rational law; since, according to the Kantian 
 notion, man is not only noumenon but also phenomenon. 
 The phenomenal man is able to and does effectively 
 detach himself from the dictates of reason which makes 
 law and compulsion necessary. There is a radical 
 imperfection in man, and this is the definite cause of 
 dualism. To the extent that positive law, the product 
 of the will of the legislator, does not harmonize with 
 the law of reason — and it should harmonize instinc- 
 tively — it is unjust, and is not law. 
 
 The eighteenth century, taken in its entirety, held 
 the notion of an eternal, perfect, absolute, and immu- 
 table law; it had an aversion for history; it made a 
 distinction between the governing and the governed; 
 it regarded law as the product of reflection; it consid- 
 ered the legislative function as belonging to experts, 
 science, and the governing classes; and it adhered to 
 the belief that there was a pre-juridical state of nature. 
 This state of nature, on one hand, was thought to have 
 been one of happiness (the Paradisiacal state of Rous- 
 seau); and, on the other, was conceived as a condition 
 of violence (Hobbes, Kant). The state of law, it was 
 thought, emerged from this antecedent state by way 
 of compact of the people. 
 
 Dualism thus reached its most acute stage. This 
 statement is true in a double sense. First, Natural Law 
 no longer was an aggregate of general principles, but 
 contained the concrete standards of the whole juridi- 
 cal system even to the last details. Second, Natural 
 Law no longer contented itself with being an ideal, but 
 
PHILOSOPHICAL POSITION 353 
 
 considered itself as directly applicable to the affairs 
 of life, and declared its opposition to positive law; now 
 in a temperate and pacific manner (as an intelligent 
 despotism), and again in a violent form (by way of revo- 
 lution). 
 
 Against all this a conservative reaction set in with 
 the beginning of the nineteenth century. This reaction 
 came with the fusion of Romanticism (which had 
 already developed in literature, art, and history), the 
 labors of the Romanists and Germanists, and the influ- 
 ence of certain political economists, commingled with 
 other contributory forces. 
 
 The Historical School, the schools of Schelling and 
 Hegel, positivism, and Christian theology, in a variety 
 of points of attack, combated dualism as it had been 
 formulated in the abstract doctrine of Natural Law and 
 by revolutionary liberalism. 
 
 True it is that certain factors in these new doctrines 
 persisted, which established a new form of dualism, or 
 at least diminished the force of the monistic conception. 
 Among the newer ideas which pressed forward against 
 dualism in its older form may be mentioned: the quid 
 tnysticum of the conscience of the people; the notion of 
 law; the concept of law in itself, and for itself; the idea 
 of pure positive law which sets up standards arbitrarily, 
 that is to say, limits what is allowed and prohibited; 
 the view of the existence of divine commands ; dogmatic 
 teachings; and the ethical element. These ideas in 
 their entirety represent a movement of protest, and 
 establish, against the older form of dualism, a contrast 
 which appears to be irreducible. 
 
 Nevertheless, all modern Philosophy of Law seems to 
 be inspired with the effort to reconcile both positions: 
 that is to say, the historical, variable, and accidental; 
 and the absolute, metaphysical, and necessary. Modern 
 
354 THIRD APPENDIX 
 
 theories deny the existence of a concretely definite ideal : 
 thus SchafiEle, Schuppe, Kohler, Stammler, and others 
 among the Germans. These theories contradict the 
 affirmation of the eighteenth century (which Spencer 
 nevertheless supports) and seek to make composition 
 between the relativity which was opposed by the old 
 Natural Law and absolute principles. This absolute 
 principle for Stammler is d priori, and according to 
 Merkel is d posteriori, but conclusively apodictic. 
 
 Kohler's system is one of these efforts, and of them 
 is the most interesting on account of the multiple bases 
 which support its elaboration: the positivistic, historical, 
 Hegelian, and teleological elements. 
 
 Kohler combats the idea of Natural Law without 
 reserve. According to him, there is no law but the 
 positive law, which manifests itself in every people, and 
 in every age. He parallels the Historical School, 
 Hegel, Stahl, and even Bentham; but he does not 
 accept as the radix, as the basis of his system, the 
 mystical and transcendental conception of a "Volks- 
 geist," or the dialectic process, or the theory of divine 
 will, or the maximum of pure pleasure. The funda- 
 mental pantheism of his system does not energize the 
 world of law; but with its elimination of the dialectic 
 process tends, perhaps, to a quietism of the type of 
 Spinoza. In place of the dialectic process, Kohler substi- 
 tutes two elements presented by the prevailing thought 
 of his time, evolution and culture; or better, cultural 
 progression. The law is equally the end and the means 
 of this culture. 
 
 When the interrogation is put as to what this cul- 
 ture is, and what part it plays in his system, one is 
 assailed by certain doubts; since when different pas- 
 sages of his writings are compared, two wholly different 
 ideas appear to be presented. At one time, he ascribes 
 
PHILOSOPHICAL POSITION 355 
 
 culture to the totality of life, to the state of a people, 
 in which sense the term has a formal meaning, without 
 reference to the content of the idea. Thus, we are 
 accustomed to speak of the civilization of the Aryans 
 or the Mexicans, meaning to express the idea of the 
 life of the people regardless of whether it is good or bad, 
 superior or inferior, in the social scale. Thus, also, one 
 speaks of the art, or the language of a people, as one of 
 the aspects of its social life, with reference to its relative 
 perfection or imperfection, and without furnishing any 
 criterion for discrimination. When Kohler says that 
 each stage of civilization carries its own foundations of 
 cultural postulates, he employs the term in the sense 
 indicated. Finally, if he comes to the thought that law 
 is an element of this culture, then he has reached the 
 stage of pure positivism. 
 
 It frequently appears that, for Kohler, culture is not 
 the content of the life of a people, but a certain element 
 more or less vaguely concrete; or at least, that it is a 
 tendency, an approximation, toward a certain ideal, or 
 perhaps only the unfoldment of determinative influences. 
 In this sense, he speaks of the forces which favor or 
 retard culture, of the necessity of the realization of cul- 
 ture by a people, of the culture established by superior 
 men, etc.^ 
 
 This is, however, not the only thing which Kohler 
 sets apart from a pure positivist relativity, since the 
 idea of evolution is the other pole of his system. He 
 does not accept the Darwinian evolution with its mechani- 
 cal play of chance, or, at its best, with its struggle and 
 selection. Evolution is more than a mere transforma- 
 tion; it signifies organic causality. The world is made 
 
 " ISee, as to the various uses of this term, Rudolf Eucken, "Les Grands 
 Courants de la Pensfe Contemporaine (translated from the German, 
 Paris, F61ix Alcan, 1911), p. 295 et seq. —Editor.] 
 
356 THIRD APPENDIX 
 
 up of eternal elements in organic unfoldment. That 
 which is manifested in time springs ab aterno from divine 
 being, of which the universe is the permanent emanation. 
 The formative progression of the living universe employs 
 the forces of nature in the service of an idea and an 
 immanent end displayed in the entire process of history. 
 That this end is for us occult is of no consequence. Its 
 existence is revealed in the wonderful teleology of history. 
 
 Finally, one finds in Kohler's system a third element 
 of unity — the function of law. Culture is something 
 different in every age and every country.^^ Every 
 civilization has its cultural postulates; every national 
 spirit has its own ideals; and every historical develop- 
 ment has its progressive and repressive influences. That 
 which is good in one place is bad in another; that which 
 is rewarded here is punished elsewhere. The law 
 accordingly manifests itself historically, in multiple and 
 contradictory forms. Its function is, however, always 
 the same. Its mission is to be responsive at every 
 moment to the postulate of culture, and the impulses 
 of universal spirit. It cannot determine d priori the 
 intervention of accidental causes, but must spring 
 inductively from the empirical materials provided by 
 universal history. This method makes possible a legisla- 
 tive policy [Rechtspolitik] with judgments of legislative 
 values. Law has the object of furthering and protecting 
 an evolution teleologically adequate (bestimmungsgemdss) 
 to the social organism. It is like a watch which, though 
 keeping accurate time, cannot indicate the hour for the 
 whole world. 
 
 The three factors upon which the transcendental 
 element seems to be based may be considered from 
 various points of view in Kohler's system. 
 
 " [See Kohler, "The Mission and Objects of Philosophy of Law," in 
 "Illinois Law Review," Vol. V, No. 7 (Feb., 1911), p. 427. — Editor.] 
 
PHILOSOPHICAL POSITION 357 
 
 First, it remains to be determined if culture involves 
 an element absolutely material or formal, or, if every- 
 thing, including the Idea itself, is thrown back to 
 historical relativity. From the statement defining cul- 
 ture, that "the development of the forces which are 
 inherent in humanity is constructive of forms which 
 correspond with the destiny of this humanity," it 
 appears that both elements, the forces and the end, 
 are immanent (Aristotle, Hegel). 
 
 Again, evolution, which embraces the ideals of human- 
 ity, is not a process left to blind hazard, nor yet to the 
 eternal repetition of the identical cycles of the Greeks. 
 But we are not able to say if the way leads with Hegel, 
 making philosophy a logical process; or whether it is 
 with Schelling, in a regression of the finite to the 
 absolute — the equivalent of the creation and system of 
 the world. 
 
 Kohler does not limit his notion of the culminative 
 point of evolution, as did Hegel, to the cultural forms 
 which are the mere products of his time (Christianity, 
 the Prussian State). An era of positivistic realism has 
 not passed in vain. Kohler believes in a constant 
 advancement. We learn from him that the future 
 leads to a union with the Divinity; but it is not easy 
 to gather how the separation occurred, or what will be 
 the reintegration. The over-men, by intuitive percep- 
 tion, perhaps, may hit upon the upward path in history, 
 and may be able to mark out the road. 
 
 Finally, the function attributed to law is subjected 
 to the oscillations peculiar to the systems which em- 
 brace the elements of teleology, history, and human 
 liberty. In that law is the product of the culture of 
 each age, and, in that it is also able to promote the 
 culture of the future, it is necessary to discover within it 
 the mysterious seed of evolution. Since Kohler rejects 
 
358 THIRD APPENDIX 
 
 a history derived <i priori after the Hegelian method, 
 there is not left to us anything but an empirical process 
 of which we are the witnesses, a development of law 
 such as was thought of by Savigny; except, that there 
 has been substituted for the spirit of the people, the 
 abstract notion of culture, or even more vaguely, the 
 amorphous conception of universal being. This, how- 
 ever, is not the view of Kohler, for whom the will and 
 human initiative play an important part in the drama 
 of life. It is certain that man's activity is simply an 
 irradiation of the universal, divine activity; but the 
 capacity of anticipating the designs of the Absolute 
 being reserved only for certain privileged ones, culture 
 appears to be an idea in the Platonic sense ; and the law 
 accordingly directs its flight away from the experi- 
 ential world from which Kohler nevertheless would not 
 release it. 
 
 These are the outlines of the effort of philosophy, 
 to which reference was previously made, to reconcile 
 the apparently irreducible elements of dualism. Where 
 Kohler employs the idea of culture and its postulates, 
 Stammler substitutes principles of law conformable 
 to a just standard; but Stammler's principles, on 
 account of their Kantian origin, take on a formal char- 
 acter and are, or seek to be, simply a method for the 
 discovery of the justice or injustice of positive law as a 
 whole. In like manner, Stahl asserts the conception 
 of divine commands; Krause posits a rational and 
 absolute end of life, which is relative in each concrete 
 case; and Spencer relies upon an absolute morality 
 as the law of the perfect man and of life conformable 
 to nature. 
 
 Kohler does not deny this fundamental analogy, but 
 nevertheless he resists the substitution. For example: 
 he combats Stammler, declaring that his theory of 
 
PHILOSOPHICAL POSITION 359 
 
 justice (richtiges Recht) is a revival of the old Natural 
 Law, because there is in it a material content; thus, 
 where Stammler condemns the injustice of slavery. 
 Stammler aspires to arrive at an absolute standard 
 which shall have the function of testing at every moment 
 the justice or injustice of the juridical material which 
 history alone can supply. He is in accord with Kohler 
 in believing that law is the cultural product of its own 
 age; but he contends that the legal standard is not 
 the test of its own justice. The standard of justice is 
 derived from an absolute d prioti principle, different, 
 however, from the conception of the eighteenth cen- 
 tury, in this, that being purely formal it cannot be the 
 material of a positive code. According to Stammler, 
 the ideal of law is immanent; for Kohler it is trans- 
 cendental. 
 
 Kohler admits that there are always definite stand- 
 ards, but that they vary from moment to moment. 
 Each epoch has its ideal principles which are, for the 
 time, standards of justice. These temporal ideals are 
 united fundamentally as phases of a unified process. 
 
 At times, Kohler reverts to the Hegelian rationalism, 
 which he seems to have abandoned. Thus, he says, 
 that law is the reason of the infinite, which manifests 
 itself in history, and guides its course in accordance 
 with the ends of the universal process.^^ Hegel, how- 
 ever, appears to take idea for his starting-point, while 
 Kohler commences with fact, and by means of this 
 fact employs a positive method of investigation. In 
 Hegel's system, one may say that the rational is real, 
 and according to Kohler 's view, that the real is rational. 
 Kohler accepts positivism and the historical method 
 based on a transcendental principle; while Hegel, who 
 
 " Kohler, "Wesen und Ziele der Rechtsphilosophie," in "Archiv fUr 
 Rechts- und Wirtschaftsphilosophie," October, 1907. 
 
360 THIRD APPENDIX 
 
 fell in with the influence of Natural Law, seeks to 
 incorporate in it the empirical facts of history. 
 
 When Kohler speaks of the universe as manifesta- 
 tion of the Divine Spirit, of history as the unfoldment 
 of a force derived ab ceterno, of social and juridical 
 institutions as infinitely variable forms of a unified 
 process; and when he asserts that law is the product 
 of the cultue of each age, when he justifies the phenomena 
 of history, and combats the Scholastics as having de- 
 clared of absolute validity certain maxims of an eccles- 
 iastical and Christian origin, he seems to incline to a 
 position of quietism. He appears to regard the world 
 and the manifestations of social life as an objective 
 process which man may contemplate and analyze, but 
 may not alter. This is a point of philosophical colli- 
 sion which has precipitated a conflict among thinkers 
 from the most diverse camps: thus Hegel, Savigny, 
 Bastiat, Spencer, and the epiphenomenalists. 
 
 But, on the other hand, Kohler combats positivism 
 and the Historical School, when he holds that even 
 though there is not a law absolute for all ages, yet there 
 does exist a permanent standard which is the relation 
 between law and culture. The standard is applicable 
 to a variable content allowing for differences in the condi- 
 tions which the standard embraces. Nevertheless, there 
 are times when the law diverges from culture.^ This 
 divergence is necessary in order to maintain their gen- 
 eral accord. Moreover, the law is an instrument for the 
 furtherance of culture; and it is necessary that it be 
 employed for that end by the application of force. 
 Behold, now, how the pendulum of Kohler's reasoning 
 swings toward a mediation which surpasses the artistic, 
 
 " This is the problem of historical accident, which, since the time of 
 Hegel, has been a subject of controversy. Kohler (like Marx, as against 
 Kirchmann and Feuerbach) inclines to admit a distinction between the 
 real (the rational) and the accidental. 
 
PHILOSOPHICAL POSITION 361 
 
 previsory, and purely acceleratory method of a Comte, 
 to reach the abstract realism of the eighteenth century 
 or the finalism of Ihering — the two positions to excite 
 his greatest aversion. 
 
 It appears as if Kohler desired to harmonize the 
 activity of man with universal being, in a form analogous 
 to that in which Christianity considered human liberty 
 to be exerted within the plans of Providence. 
 
 Although law, according to Kohler, is the historical 
 product of the culture of each age, yet he assigns to it a 
 finality. Whatever may be the way in which these two 
 ideas are reconciled in his system, there is no doubt 
 that this teleology frequently appears in his writings. 
 It is not eudoemonism (and Kohler is careful to accen- 
 tuate this point), but yet, unmistakably, it is law with 
 an end. It has already been pointed out that to reach 
 this position Kohler has, perhaps, to some extent aban- 
 doned the Hegelian standpoint. Hegel, likewise, held 
 to a teleological explanation of the universe; but it 
 was a teleology of Idea. In this transition of viewpoint 
 Kohler approaches Ihering, his greatest adversary. The 
 only difference is that Ihering speaks of happiness, 
 while Kohler substitutes culture as the finality. 
 
 The question nevertheless recurs, what is the end of 
 the law? Kohler insists with the greatest vigor that 
 the ideal of humanity transcends the pleasures of the 
 senses, and that it towers over earthly existence and the 
 possessions that go with it. He inclines toward a Car- 
 tesian spiritualism. He looks with 'a certain disdain 
 on the inventor of the distaff, and the discoverer of 
 sterilized milk, who seek to promote the well-being of 
 life by providing improved forms of food or clothing. 
 While such efforts are good, yet they do not attain the 
 splendid ideal disclosed in such a creation as Tristan. 
 There is evident here, therefore, a standard of valoriza- 
 
362 THIRD APPENDIX 
 
 tion, when he contrasts in a somewhat Puritanical sense 
 the grosser things of life with an elevated ideal. It is 
 not easy to understand this repugnance for the material 
 things of life, or to see why the winning of bread may 
 not be in its own way as deserving of praise as the Vic- 
 tory of Samothrace. In any event it appears, according 
 to Kohler, to be certain, that the ideal does not rest 
 on the method or the spirit of an activity, and that it 
 does not invest a mere method or form of activity with 
 a noble or sublime character. This character is deter- 
 mined by the content of the activity itself. The ideal of 
 life has always for Kohler a definite substantive nature. 
 He acknowledges that each epoch has had its own ideals ; 
 but here an d, priori principle arises to declare some of 
 these ideals more elevated and more refined than others.^* 
 Kohler thinks that modern culture is entirely the pro- 
 duct of Christianity,'** which brought about, he says, a 
 new conception of the world. It moreover appears that 
 in arriving at the Christian point of view of the Middle 
 Ages, he gives to Christianity a special meaning, attri- 
 buting to it a renouncement of the world and the tor- 
 mented pessimism of a Calvin; and he looks away for 
 the moment from the placid optimism of St. Clement, 
 St. Gregory of Nice, San Juan de la Cruz, St. Francis, 
 and St. Theresa.^^ 
 
 " Certainly a more exalted standard. "What evidence would there 
 be," he asks, "of our efforts and struggles since the thousands of years 
 of the existence of humanity, if it were not for the monuments of the arts 
 and sciences?" This calls forth to him the verse of Leopardi: "Dimmi, 
 o luna: a che vale — Al pastor la sua vita?" ("Die Entwicklung im 
 Recht," in "Grunhut's Zeitschrift," XIV (1887).) 
 
 " He refers, obviously, to European civilization and the civilizations 
 influenced by it; excluding, for example, the Japanese culture. 
 
 « Goethe and Hegel describe the Middle Ages as an epoch of gloom, 
 austerity, and obscurity, which has its similarities among the Cynics, 
 and the ascetics of Thebes. According to Hegel, art ended with the 
 Greeks, and while in the Middle Ages the background of creation was 
 limitless, yet it lacked adequate form. This conception of the Middle 
 Ages is today a matter of deep controversy. In this connection, it is 
 
PHILOSOPHICAL POSITION 363 
 
 It is a matter of uncertainty if the ideal of which 
 Kohler speaks is within us or external. At times he 
 seems to incline to the position that while science takes 
 as its standard the reality of the objective world, that 
 the transcendental standard of ideality does not reside 
 in the law, in morals, in language, or in the arts. This 
 peculiar and somewhat Cartesian view assigns to science 
 a privileged position. By itself it would leave without 
 explanation another notion from which Kohler draws a 
 definite ideal of life. This conception of the nature of 
 science approximates somewhat the position of Lange, 
 according to whom, science begins and ends with obser- 
 vation, with the study of particulars. He looks beyond 
 science for that which transcends the objective world, 
 and which is necessary to make complete the knowledge 
 of life; thus, for example, the aesthetic ideal, the moral 
 ideal, religion.. 
 
 The cultural values which law has the mission to pro- 
 mote, according to Kohler, are of various kinds: thus 
 knowledge (science), contemplation (the arts), the meta- 
 physical sense (religion), and force (dominion of the 
 world). He states these elements without superior rela- 
 tion or preference among themselves. 
 
 Kohler's juridical ideal is of the kind that we may 
 designate as an Hegelian aristocracy. Law which is 
 intended for the people should not be plebeian. It 
 must be permanently ideal and educative. It cannot 
 draw its inspiration from the indolent contentment of 
 the masses. It must precede evolution, carrying aloft 
 the torch of culture. 
 
 enough to mention the care devoted to the human body, the tourna- 
 ments, the richness and gayety of Venice and Florence in the fourteenth 
 century, the complexity of municipal life, the easy form of the architec- 
 ture and the agreeable French sculpture of the thirteenth century. 
 Dante is melancholy in the Inferno, and so, likewise, were the Cynics. 
 There is, however, nothing of sadness in St. Francis of Assisi, or Petrarch. 
 Similar observations must be made of the Renascence as favorable 
 to terrestrial things, if one thinks of Luther, Calvin, or Savonarola. 
 
364 THIRD APPENDIX 
 
 He tends to draw away from mere reason, reflection, 
 and authority, and appears to submit the problem of 
 law to the province of feeling, intuition, and the afflatus 
 of creation; from which viewpoint he arises to the con- 
 cept of the Superman, and his function in the world's 
 history. 
 
 The opposition between heaven and earth finds its 
 counterpart for Kohler in the distinction between superior 
 entities and the masses. The consciousness of the people 
 is dualistic as compared to the insight into life of the 
 Superman. It remains to determine upon what these 
 ideas rest. 
 
 Every man is the child of his age, according to Hegel. 
 The distinction between the superior ones and the mul- 
 titude is simply a phase or aspect, and rests on a full 
 penetration of the antecedent and consequent condi- 
 tions. It is not the function of culture to pull up by the 
 roots from the common people, personalities of genius 
 who shall thenceforward remain apart from the inferior 
 elements of life; but rather to elevate popular con- 
 sciousness, and cause it to generate superior individuals 
 who recognize themselves as and are a part and products 
 of a general human whole. The consciousness of the 
 great ones is only the reflex form of popular conscious- 
 ness. Culture, like language, is a product of the social 
 community, in the formation of which the common people 
 and the superior entities exert a common effort, even 
 though in different ways. The genius and the multi- 
 tude alike are the instruments of universal reason. 
 
 It does not appear to be possible here to compose the 
 viewpoints of Kohler and Hegel. In the various prob- 
 lems which are connected with this notion (reason and 
 feeling, reflection and spontaneity. Superman and the 
 masses, etc.), the solutions to which Kohler inclines 
 perhaps require other premises. 
 
PHILOSOPHICAL POSITION 365 
 
 The emancipation from the locked-in fixedness of 
 rationalism, and from regulated social shackles, is 
 represented by the movement of enlightenment (Auf kid- 
 rung). It gave free play to the expansive force of indi- 
 vidual thought, it produced a respect for great accom- 
 plishment, and gave a value to intuitional power and 
 the internal vision. It inspired a depreciation of Philis- 
 tinism, and the inconsequential littleness of political 
 life, and sought refuge in the life within, in science and 
 literature, and in the simplicity of nature. This move- 
 ment culminated in German humanism, in the philoso- 
 phy of faith (Hamann, Herder, Jacobi), and in the 
 completely romantic development of thought of the first 
 third of the past century. 
 
 It cannot be doubted that, as against this general 
 current, there were opposing forces in motion. The His- 
 torical School elevated the value of customary law, and 
 considered it as derived immediately from the con- 
 sciousness of the people, as the single fountain of all 
 legal rules. The same Romanticism, however, which 
 was represented by the Historical School, sought, on the 
 other hand, to break through social trammels, conven- 
 tionality, and external considerations. It raised up a 
 pedestal to genius and therefore separated it from the 
 masses. Recognition of a principle of superiority and 
 inferiority among the people, in truth, renders the 
 superior ones exempt from the rules which govern the 
 common people, attributing to them a personal standard 
 of law and morals, or absolves them altogether from the 
 restraint of legal rules; but if we go a step further and 
 say that the creations of men of genius descend, with 
 greater or less speed, or with more or less perfection, to 
 the multitude, then we arrive at a government of the 
 learned, and approach an enlightened despotism, or a 
 reign of doctrinalism. 
 
366 THIRD APPENDIX 
 
 The notion of considering the genius as the social 
 product of an age^ reducing his function to the expression 
 of that which is in any manner already present in the 
 consciousness of the masses (Hegel), harmonizes with the 
 idea which regards superior talent as the highest point 
 of an indefinite series of social capacities in which 
 humanity finds, by progressive steps up to the highest, 
 a realization of its conceptions in a form more imme- 
 diate and less amorphous (Giner de los Rios). This is 
 not, however, the view of Kohler. His position here is a 
 reminiscence of the heroes of Carlyle or the "hommes 
 sup6rieurs" of Renan notwithstanding the attenuations 
 which the age imposes on this romantic amoralism." 
 
 Considered as a whole, the position with the closest 
 affinity to Kohler's is probably that of Nietzsche. He 
 speaks frequently of Supermen. Law has the mission 
 of favoring the expression of superior talent and of giv- 
 ing to it a wide scope of activity which its social func- 
 tion requires. A people is not great because of the 
 happiness of the greater part of its constituent indi- 
 viduals, but only when it has men of genius who open 
 up new avenues of culture, even though otherwise it is 
 deep in misery. Above all, the Superman is for Kohler 
 the moving factor of culture ; and culture predominates 
 in artistic creation, invention, and great ideas.''' 
 
 If it is sought to inquire of what the superiority of 
 
 •' "We are removed, today, from the historical views of the good 
 Schlosservi'howouldiudgeof great men according to the cathechism . , . 
 just as if man had no other mission than to hve an honorable and orderly 
 life, and as if there were no distinction between a superior individual 
 who blazes new paths and a village school-master, than that the greater 
 one made more conversation about himself than the other." — Kohler, 
 "Aus Kultur und Leben," Berlin, 1904, p. 6. 
 
 " It is to be noted, that in Kohler's opinion the fundamental idea 
 of the system of Nietzsche is Hegelian; and that his merit lies in 
 considering personality not as having an individual value, but in that 
 personal activity has a significance for history. See "Moderne Rechts- 
 probleme," p. 10 ei seq. 
 
PHILOSOPHICAL POSITION 367 
 
 men of genius consists, as to what is its origin, its 
 content, and its scope, in order that we may be able to 
 trace the dividing line between abnormal capacity and 
 insanity and deal with genius according to a standard 
 of excellence, we may note certain differences of idea 
 between Kohler and Nietzsche. 
 
 For Nietzsche, the Superman comes from the midst of 
 the people in a kind of Darwinian evolution. According 
 to Kohler, the Superman partakes to a greater or less 
 extent of the character of his people, because other- 
 wise he would find no reflection in the element of his 
 origin; but he arises from the mass according to a plan 
 which appears to be of divine pre-arrangement. The 
 Superman discovers by an intuitional process the high- 
 ways of culture. He is the guide; but more than this, 
 he is even the people itself, and is therefore the beginning 
 and the end of the law. 
 
 Since, however, it is presupposed that there is a road 
 which culture is to follow and a destination to be arrived 
 at, it appears that Kohler's notion of the Superman is 
 not the same as Nietzsche's. Kohler's point of view is 
 rather reminiscent of the system of Plato. According 
 to Plato, the superior man is one who looks upon the 
 pure light of Idea, the essential and immutable reality, 
 who penetrates with a synthetic vision the realm of 
 truth, laying aside material feelings and sensations, 
 and, divorcing himself from the sensible world, raises 
 himself up to a semi-divine life in which perception of, 
 and participation in, the pleasures and pains of the 
 external world have their proper place. Placing him 
 at the head of the State he ascribes to the Superman a 
 nature superior to the spiritual level of the masses. 
 Kohler, contrary to Nietzsche, allows to his Superman 
 a love of his neighbor which he regards consistent wrth 
 a love of the humanity of the future, and a struggle for 
 
368 THIRD APPENDIX 
 
 the ideal. He would have him exert his efiforts within 
 the law and subject to political order. Those anarchis- 
 tic spirits who do nothing except to destroy, he looks 
 upon with disfavor. Finally, Kohler is apart from 
 Nietzsche where the latter considers Christianity as the 
 morality of decadence. Kohler says that the renuncia- 
 tion of the world was not an essential principle, but only 
 a temporary, evolutional phase necessary in its age. 
 
 There is a certain tendency in Kohler's Superman 
 to dominate the course of history, to order life and 
 the world, and to employ violence according to the 
 exigencies of his ideal and in favor of the objects of 
 culture. (Compare, by way of example, the function 
 attributed to military chieftainship.) 
 
 After the manner of Hegel, Kohler looks upon the 
 State as the realization of the ethical ideal. There is, 
 however, a difference. Hegel builds up the State by a 
 logical process through the controlling force of the 
 ethos (family, civil society. State) as the last degree 
 of the objectivation of the spirit which unites in law 
 and morality. Kohler places historical experience at 
 the base of his construction, and directly justifies the 
 products of reality by metaphysical principles. 
 
 For both thinkers, the State is the divine spirit which 
 unfolds and organizes itself in the objective world. 
 Each uses the ideas of his age as an d, priori basis of 
 his system. Hegel takes constructive rationalism and 
 the principles of Natural Law, which, by means of a 
 logical process, cause him to fall in with the bureau- 
 cratic monarchy of his country and his age. Kohler 
 starts with an analysis of the empirico-historical pro- 
 cess and the principle of evolution, which justify in his 
 system all the social phenomena which are the result 
 of a living reality, so far as they are modes of realizing 
 the cultural forces which are manifested in universal 
 history. 
 
PHILOSOPHICAL POSITION 369 
 
 -History and comparative law demonstrate to us a 
 transition among peoples from totemism to sachemism, 
 then to military chieftainship, and at last, to monarchy, 
 etc.; but this process does not appear everywhere 
 under the same conditions. It is a movement which 
 depends on a variety of factors, among which the spirit 
 of the people is highly important. 
 
 Kohler, however, encounters certain facts which 
 appear to have a value for universal history; for ex- 
 ample, that mankind has developed out of social groups 
 more or less differentiated, through a cultural fer- 
 ment by which it has detached the personality of the 
 individual and gained his liberty. He accordingly com- 
 bats the principle which serves as basis for the social 
 contract. 
 
 Civilization is able to unfold only in the womb of 
 such communities. Since, however, there are forces 
 opposed to and destructive of civilization, and it is 
 necessary to combat and overcome these hostile inter- 
 ferences, the State must be an authoritative entity 
 of power and permanence. 
 
 What value does Kohler concede to the element of 
 judgment, and what value does he attribute to the 
 element of spontaneity in the State? If one is to 
 adventure an answer, it will be in favor of the thought 
 element over that of the unwilled element. 
 
 There can be no doubt that Kohler admits a semi- 
 conscious and customary development of legal life 
 among the masses of the people; but taking a teleo- 
 logical view of the State, this legal unfoldment appears 
 to him to be slow, weak, and imperfect; and he prefers 
 the initiative of legislation on which he places all his 
 faith. It is necessary at every moment to regard the 
 ideals of culture. These ideals are revealed partly in 
 history itself, and partly outside of it, by means of 
 
370 THIRD APPENDIX 
 
 superhuman intuition. When the directing spirits, 
 the Supermen, and the legislators have once attained 
 a consciousness of this ideal, they must establish it 
 by all the means within their control even to the severest 
 violence. In this action there is a limit which marks 
 the appropriate domain of the individual, in which 
 the activity of the State is excluded. This individual 
 province is not, according to Kohler, an absolute prin- 
 ciple like the so-called "rights of humanity," but has 
 relative limitations, determined historically and cir- 
 cumscribed in the last analysis by the supreme standard 
 of the exigencies of culture. 
 
 At this point Kohler perhaps somewhat moves away 
 from the quietistic notion of Hegel that "philosophy 
 always comes too late" to rule the world. 
 
 At the same time, Kohler takes a teleological position 
 with reference to the State, like Plato, Aristotle, or in 
 the sense of the liberalism of the eighteenth century, 
 and in the naturalistic view, of Hegel, as the product 
 of the evolution of the All. 
 
 Sometimes, and especially when examining the 
 historical forms of the State, Kohler reverts to the 
 formula of Schelling — the State is a natural thing, 
 like a plant — and even to Lamarck and Darwin — 
 the causal notion of struggle, selection, adaptation, hered- 
 ity, etc. The characteristic feature of Kohler's posi- 
 tion is unmistakably the desire to fuse together the 
 complex elements of modern science. 
 
 He does not, however, align himself with Aristotle, 
 or with Grotius, or with the eighteenth century in 
 conceiving the State as an organization designed for 
 the ends of individuals, or as a product of the will. 
 Perhaps, he rather approximates the position of Plato 
 who regarded the State as an organism ; with this dif- 
 erence, that Kohler substitutes Culture for the Idea of 
 
PHILOSOPHICAL POSITION 371 
 
 Plato's sytem, in the service of which the individual and 
 the State contribute alike. Kohler's inclination toward 
 a sophocratic rSgime is also suggestive of Plato, although 
 Kohler does not accentuate as strongly as Plato the 
 secondary place assigned to the amorphous social aggre- 
 gate. The Greek philosopher elevated the importance 
 of the ruler over the law, while Kohler places more faith 
 in the law than in the function of the law-maker or the 
 judge. 
 
 This preference for the law does not arise from a 
 rationalistic and universalistic turn of thought such 
 as prevailed in the eighteenth century; it does not 
 proceed either from a notion of legal infallibility; and 
 it also is not based on any distrust of those who exercise 
 governmental power. It is predicated rather on the 
 belief that the law is the most perfect instrument, 
 and above all, the most expeditious means of minis- 
 tering to the complex necessities of modem life. 
 
 Kohler, like the Greeks and Hegel, does not attempt 
 a justification of the State. History presents the State 
 to us objectively, even though in relative and variable 
 form. We know on d priori grounds that it is the 
 great instrument promotive of civilization. Within 
 the State alone is it possible for humanity to find the 
 road on which its ends are attained. At this point caus- 
 ality and finalism amalgamate. 
 
 With reference to the problem of the extension 
 of the scope of the State, it is sufficient to say that 
 Kohler combats the eighteenth century notion of the 
 Rechtsstaat, and on the contrary assigns to the 
 State the function of promoting human culture within 
 a definite territory and by means of its own proper 
 
 laws. 
 
 In a determination of the sphere of the State's activity, 
 Kohler occupies a middle ground (as with reference to 
 
372 THIRD APPENDIX 
 
 his notion of law) between those who seek an absolute 
 principle, and those who look to historical relativity. 
 Perhaps, in this concrete position Kohler assimilates 
 Merkel more than any other thinker, although he com- 
 bats his fundamental idea of the general theory of law. 
 Merkel contends that the State has the function of 
 maintaining a juridical system as the necessary agency 
 for the guaranty of such interests as it may at the time 
 regard as of importance. The interests which are held 
 to be important enough to receive protection may be 
 altered from one moment to another by the State. 
 According to Merkel, those interests obtain protection 
 which become dominant, those which have the force to 
 compel protection. Kohler asserts here an absolute 
 element, culture, which is determinative for every age 
 and every country as to what conditions in life must be 
 protected. 
 
 Compulsion seems to be for Kohler an essential char- 
 acteristic of the law. He defines law as compulsory 
 social regulation of human relations ; and adds that pre- 
 cisely because it is social compulsion (Zwangsordnung), 
 it differs from ethics and morals with which, in the 
 earliest historical times, it had been confused. 
 
 While it is clear that the idea of force raises a critical 
 question which runs through modern juridical theory, 
 it is not easy to determine what position it occupies in 
 the system of Kohler. 
 
 With reference to criminal law, Kohler generally 
 aligns himself with the school accustomed to call itself 
 Classical, as against the Positivist School and the modem 
 theories.^' 
 
 This is especially true of his consideration of the 
 
 " See especially "Moderne Rechtsprobleme," p. 19 et seq., and "Ein- 
 fUhrung in die Rechtswissenschaft," 2nd ed., p. 148 et seq., where the 
 notes, on which his views are chiefly based, may be found. 
 
PHILOSOPHICAL POSITION 373 
 
 problem of freedom of will. Leaving behind, for the 
 moment, his pantheistic position, and taking a place 
 within the domain of those deists who are concerned with 
 the relation of divine omniscience to human liberty, he 
 regards as senseless the supposed incompatibility between 
 them. Temporal evolution is real, although relative; 
 and by finding God at the summit of this evolution, the 
 past, the present, and the future, he says, fuse into an 
 indivisible unity. 
 
 In like manner, he seeks to resolve the conflict between 
 universal causality and human liberty; since he asserts 
 from the same point of view, that God, in creating human 
 liberty and will, has, on one hand, left open the diversity 
 of possible choices which human liberty presupposes; 
 and, on the other hand, has established alongside of 
 these human forces of indeterminate direction, factors 
 of another sort to secure, by preponderating over them, 
 a final result conformable to the divine plan. Man 
 and not God is responsible for evil. Evil arises from a 
 plurality of phenomena, and not from the promordial 
 essence. 
 
 The regularity of human acts established by statistics 
 argues nothing against human liberty, according to Kohler. 
 Even if blind chance has its laws, why should not human 
 acts have them also, that do not proceed from mere 
 indeterminism, but from forces influenced by motive 
 and character. 
 
 Finally, Kohler regards human liberty as compatible 
 with: (a) the law of causality, because the position of 
 the individual being that of an autonomous agent, 
 there is an explanation in each case of the "if" of an 
 act, but the "why" is a thing which does not fall within 
 the rules of causation; (b) with the conservation of 
 energy, because it embraces volitional facts, whatever 
 may be their content; and (c) with the physiology of 
 
374 THIRD APPENDIX 
 
 the brain, because it is not the only factor in the 
 phenomena of sensation. 
 
 According to Kohler, liberty of will is cognized by 
 internal experience. Whatever may be the influence of 
 motives and character, every one feels within himself 
 that they are not the sole forces productive of will (as 
 was thought by Spinoza and Schopenhauer); but that 
 an additional element intervenes — an internal resolution. 
 
 He proclaims the primacy of the will over intelli- 
 gence in the sense of Saint Paul and Saint Augustine. 
 Motives may in part influence the will; but in the last 
 analysis the will assigns to motives their value either 
 to enlarge or diminish their force. The will is substan- 
 tive. There are men of strong will, and others of weak 
 will. The volitional function is not the product of com- 
 mingled feelings (Gefuhle). There is an organ of the will 
 which is something more than a container for the co- 
 ordination of feelings. 
 
 In opposition to determinism, Kohler employs the 
 arguments of the Scholastics. We are not constrained 
 from within by the formative energies which reside in 
 each of us. Internal motives do not convert the soul 
 into a machine. It is necessary to distinguish liberias a 
 coactione and libertas a necessitate. The latter signifies 
 that, given all the conditions, one is able to do or not to 
 do. Responsibility is based, not as is supposed by the 
 deterministic view, on a judgment of the value of the 
 act, but on the possibility of acting one way or another. 
 Otherwise it would not be possible to perceive why an 
 act should be limited to a moral valuation, and yet not 
 include an intellectual appraisement; in which case the 
 acts of the insane would be subject to condemnation. 
 
 Merkel denies liberty of the will, but thinks that the 
 will may have an ethical valuation; because in ethics, 
 as in aesthetics, it is of no consequence whether the will 
 
PHILOSOPHICAL POSITION 375 
 
 may exert itself in different ways or not.'" Kohler 
 argues against him, holding that in aesthetics neither the 
 actor nor the action is of consequence, but the result, 
 the realized idea, is the important thing; while ethics 
 deals with the subject of whom it is necessary that 
 there be a possibility of an internal (although it may be 
 an ineffective) deliberation. Merkel overlooks, in Koh- 
 ler's judgment, the fact that character is a matter of 
 education; that there are times when there may be an 
 election between a variety of good acts, according to 
 the occasion and the circumstance, or an election as to 
 the method and form of their realization; and that, 
 finally, such acts may be accompanied by a diversity of 
 feelings, such as the feeling of modesty, or of vanity. 
 We would not be able, he says, to assign to a madman 
 who had a mania for saving shipwf ecked persons any 
 higher moral attributes than to a Saint Bernard dog. 
 
 Human will is neither subjected to the determinism 
 of motives and character nor to the indifferent equilib- 
 rium of an absolute indeterminism. It holds a middle 
 position between certain extreme limits, and within 
 these limits is a thing of substance. 
 
 Kohler appears to accept the Scholastic point of 
 view with reference to the limits between the immoral 
 and the unjust. Law, he says, does not relate to inter- 
 nal motives, but to external acts although these acts 
 are simply manifestations of the will. 
 
 What human acts fall within the province of penal 
 law? According to Kohler, in order that an act may 
 be punished as a delict, it is necessary that some human 
 interest be infringed, and that the other remedies of 
 
 " Because, for example, we would not have esteemed the Samaritan 
 less, even though we should not be able to imagine that he could have 
 acted otherwise. On the contrary, we would respect him all the more 
 if we should believe his morality to be so firm as to exclude the possi- 
 biUty of acting in any other way. 
 
376 THIRD APPENDIX 
 
 reaction which society employs to restrain such an act, 
 or to make it inoperable, should be ineffective. The 
 interests which the penal law has to protect vary 
 according to the age, and according to social conditions. 
 
 In all cases, however, punishment is the ultimate 
 remedy applicable solely on account of the impotence 
 of other remedies, and especially by reason of lack of 
 competence of the civil law. 
 
 The theory which supposes that in all cases there 
 is a prohibitive standard against certain kinds of acts, 
 and a threat of punishment for the offender, is not 
 admissible according to Kohler, except in the domain 
 of police regulations; where, for example, it may be 
 required that a coach shall not turn to the right, or to 
 the left. Violation of such a regulation does not touch 
 any social interest. Such regulations are purely arbi- 
 trary, and established for the maintenance of social 
 order. 
 
 The purpose of penal law, according to Kohler, is 
 retribution, which re-establishes, by means of the inflic- 
 tion of suffering, the order which has- been disturbed. 
 If the standpoint of retribution is departed from, penal 
 law is transformed into a system of police tutelage, 
 or a kind of utilitarian security, or into a pedagogical 
 organization. Such departures have nothing to do 
 with justice. 
 
 Kohler therefore arrives at an absolute theory, but 
 he attenuates this absolutism in various ways: 
 
 1. The intensity of retributive punishment is modi- 
 fied according to the postulates of the culture of the 
 age; 
 
 2. Although not a part of the retributive theory, 
 two other conceptions are found in connection with 
 it: intimidation and correction, both of which must 
 accompany punishment ; 
 
PHILOSOPHICAL POSITION 377 
 
 3. Because he accepts the exigent cultural methods 
 common to nearly all schools of thought, and requires 
 of the State that it shall further those conditions which 
 favor a sane and noble social Hfe, contributing to the 
 prevention of criminality. These conditions are: edu- 
 cation in all its phases, especially the training of charac- 
 ter; the cultivation of religion because of its great moral 
 influence; encouragement of the associational impulse 
 {esprit de corps); efforts against alcoholism; making 
 it easy to obtain work; measures of preventive security 
 (including deprivation of liberty) against those delin- 
 quents who after full punishment are not reformed or 
 who are incorrigible; tutelage over convicts after sen- 
 tence; constitutional liberty, etc. 
 
 While it is beyond doubt that all these functions, 
 and many others with reference to the delinquent, 
 attach to the State, and that, according to Kohler, these 
 protective activities of the State are separate from 
 the proper scope of penal law, yet his absolute theory 
 is diminished and enlarged by the fundamental notions 
 of the relative theories. 
 
 Kohler holds that the cultivation of spiritual interests 
 and the progress of civilization do not diminish crim- 
 inality. He insists, on the contrary, that the seeds of 
 progress hold the elements of corruption, which we 
 should make an effort to eradicate. Therefore, the 
 greater the degree of culture, the more severe should 
 be the penal law. 
 
 Kohler does not, however, regard this increase of 
 criminality as an obstruction to the advance of civili- 
 zation. Since the time of Nietzsche, he says, it has 
 not been possible to question that it is not the moral 
 worth of a man, but his influence in the development 
 of culture and of humanity that is of importance in 
 history. It seems, therefore, that Kohler agrees with 
 
378 THIRD APPENDIX 
 
 those who, like Durkheim, look upon deHctual acts 
 as necessary phenomena, even if evil ones. 
 
 Kohler is today perhaps the most conspicuous repre- 
 sentative of a tendency of juridical science which has 
 taken form in the most recent times. This new science 
 has already established a large part of its discoveries, 
 and seeks to give them a position as fundamental prob- 
 lems. I refer to the so-called science of comparative 
 law, which is also called ethnological jurisprudence, 
 or juridical ethnology. 
 
 The reaction against the abstract impulse of Natural 
 Law, represented by the Historical School, turned the 
 point of view to empirical facts as a secure unified basis 
 of scientific construction. In order to understand the 
 law as the conscience of the people it was necessary 
 to search into the juridical life of successive genera- 
 tions, into the continuity of this life which gave it its 
 character. Resort was had to what lay close at hand. 
 The adherents of the Historical School, notwithstanding 
 that here and there a voice was raised which proclaimed 
 the necessity of looking to the whole legislation of 
 ancient and modern peoples (Thibaut), did not found 
 their doctrines upon fundamentals, or extend their 
 studies beyond the Roman law or the German law. 
 The Historical School was principally a school of jurists 
 preoccupied not with an investigation of the law but 
 their law. 
 
 The introduction of universal history is due prin- 
 cipally to the influence of abstract or speculative phil- 
 osophy, to Hegel and the HegeHans. It was one thing 
 to assign to history its place as a concept of the world ; 
 it was another to discover and bring to light its secrets. 
 The latter object has been attained as the result of 
 much investigation. When Gans planned his great 
 work, the materials were not yet in existence for a 
 solidified construction of his labors. 
 
PHILOSOPHICAL POSITION 379 
 
 The idea of gathering up these materials as an uni- 
 versal history of the law took form after the middle of 
 the last century. 
 
 Bachofen, Maine, MacLennan, Morgan, Post, Howitt, 
 Bemhoft, Dargun, Leist, Letoumeau, Lubbock, West- 
 ermarck, and many others made important contri- 
 butions to the result; and the Journal of Comparative 
 Law in Germany (Zeitschrift filr vergleichende Rechts- 
 wissenschaft) became the principal repository where 
 the new discoveries were set forth. 
 
 These investigators were not content simply to gather 
 up data, a great deal of which was to be had from trav- 
 elers and missionaries, or to be excerpted from litera- 
 tures, but they labored to co-ordinate the facts of 
 history and to reconstruct from isolated particulars, 
 legal institutions. 
 
 This new science had hardly begun to attain expres- 
 sion in an extension of its scope, when it received the 
 impact of the realism and positivism of the time, and 
 broke its moorings to navigate on its own account. 
 
 Post is perhaps the most eminent representative of 
 that aspect of the science of comparative law which 
 takes on a constructive function and raises itself up 
 against the philosophical conception which generated 
 it, and the historical influence which nourished it, in 
 an aspiration to be the foundation of all juridical science. 
 Post rejects conscience as the legal standard and 
 declares that experience is the sole basis of knowledge. 
 In order to fortify experience he has recourse to the 
 investigation of the legal institutions of all peoples. 
 These institutions in their comparative scope are not 
 of interest for local legislation and have no connection 
 with the conditions of the moment, except as elements - 
 for the elucidation of certain phases or developments 
 of legal institutions (such, for example, as hereditary 
 
380 THIRD APPENDIX 
 
 position, the territorial, feudal, and corporate notions) 
 which find universal repetition in life and argue for uni- 
 formity of evolution and the fundamental unity of 
 human nature. 
 
 This basic unity of human nature is one of the axes 
 of this doctrine, since, being founded on this unity, it 
 aspires to the universality of experience which is found 
 in the facts of history. Especially is this true of primi- 
 tive ages, where there are large blanks which history 
 cannot fill in. These vacancies could not be understood 
 otherwise than by virtue of the hypothesis which 
 assumes the stages of savagery, barbarism, semi-civiliza- 
 tion, and culture, as the phases of human evolution. 
 
 Ethnological jurisprudence thus comes into conflict 
 with abstract philosophy of law and historical juris- 
 prudence; and therefore the doctrine of Post has had 
 to bear the assaults of both camps. 
 
 From the philosophical side it is urged, for example, 
 by Schuppe, who denies that there is any universal value 
 in the method of comparative law, that in the inves- 
 tigation of a thing, it is necessary to have some ante- 
 cedent notion, however vague, of what this thing is. 
 There is no experience without a general notion of the 
 object of experience. Experience is not able to seek 
 juridical phenomena, nor is it able to apply a juridical 
 judgment to any fact without the aid of a more or less 
 definite understanding of what law is, which is a notion 
 like all other general concepts which are given to us by 
 language originally in an obscure form. Although 
 concepts do not arise except by comparison, yet com- 
 parison is not the only agency which gives them form. 
 Neither is it necessary to know the history of all peoples 
 -to understand the nature of law, any more than it is 
 necessary for the zoologist or the botanist to study all 
 the examples of a species in order to arrive at a scientific 
 
PHILOSOPHICAL POSITION 381 
 
 induction. Although the common element must be 
 found in the whole species and in each individual speci- 
 men, yet it does not fall to say, that the common ele- 
 ment is discovered by a mere elimination of differences. 
 Such discovery rather depends on the individual apti- 
 tude of the investigator. One observer with a small 
 number of specimens may arrive at a scientific general- 
 ization which another observer is not able to perceive 
 in his examination of a large number of examples. 
 
 On the historical side, some writers doubt the ad- 
 vantage of specialization by the comparative method 
 over the critical and the historical method; others (as 
 for example, Schroder) would confine the history of the 
 law to the Aryan peoples, and leave ethnology to deal 
 with the others; and again others, like Leist, reject 
 the investigation of juridical schemes of rational affini- 
 ties among peoples (which Leist thinks is the scope of 
 comparative law), and separate for study the institu- 
 tions of a group of people (like the Aryan group), apply- 
 ing the critical historical method of investigation. 
 
 Post's theory is not the only one in the science of 
 comparative law. At any rate, there are other notions 
 which are presented under the same name which agree 
 in admitting validity to the comparative method, but 
 do not agree as to the result of this method, or as to the 
 nature of the comparison to be employed. 
 
 Chiefly, there is a large group of jurists who cultivate 
 a parallel and yet comparative study of modern laws 
 as accessory and auxiliary to the knowledge of domes- 
 tic law, for the purpose of arriving at the dominant 
 ideas of the age, in a common legislative program, or 
 as the basis of a civil polity. 
 
 Kohler without question inclines to the viewpoint 
 of Post and, like him, carries his comparative legal 
 investigation by preference back to the institutions of 
 
382 THIRD APPENDIX 
 
 remote ages, and to primitive and semi-civilized peoples. 
 The law of the nigritic Australians, the Papuans, the 
 Polynesians and the Malays, of numerous African and 
 American tribes, of the Aztecs, Chinese, Japanese, 
 Egyptians, Hebrews, Assyrians, and Babylonians, the 
 Burman and the Buddhist law, the law of the Mussul- 
 man, East Indian, Armenian, Greek, and the Celt, the 
 Thibetan law and many others have been the object 
 of his labors. At one time, he has sought to reconstruct 
 their point of contact; at another time, he has inves- 
 tigated some special legal manifestation; and again, 
 his studies have had reference to some definite insti- 
 tution, such as the community of wives (Weiber- 
 gemeinschaff), artificial relationship {kiinstliche Ver- 
 wandschaft), marriage, matriarchy, kin-revenge {Blut- 
 rache), the law of asylum, or the ordeal. 
 
 Sometimes Kohler regards the science of compara-^ 
 tive law as a kind of prehistorical instrument, which, 
 by a method of its own, leads us up through the uncer- 
 tainties of the past to the reach of German historical 
 knowledge.^* 
 
 Like Post, Kohler reduces the various juridical sys- 
 tems which appear in remote ages, or in distant places 
 to certain types in which he distinguishes, in the midst 
 of an infinite variety of customs and standards, certain 
 common phases of a general evolution. 
 
 The fundamental unity of mankind, to which refer- 
 ence was made above, is necessarily the basis of this 
 method. This is demonstrated in Kohler's judgment 
 by the identity of certain customs which obtain among 
 peoples widely separated and in different ages. The 
 inferior stages of cultural progression are uniform in 
 
 "See his article, "Die Entwicklung im Recht," in Griinhut'a "Zeit- 
 schrif t f iir das Privat- und offentliche Recht der GegenwEirt, " XI V ( 1887) , 
 p. 410 et seq. 
 
PHILOSOPHICAL POSITION 383 
 
 their general outlines. Differences appear among 
 peoples as in the case of individuals with certain somatic 
 developments. For this reason, Kohler rejects many 
 constructions derived from comparative law, such 
 as those of Leist, who would derive from the identity 
 or similarity of certain legal institutions among various 
 peoples, the prevailing legal spirit among them in the 
 age in which the institutions appeared. 
 
 Kohler does not content himself with a composition 
 between philosophy of law and universal history. He 
 would penetrate them intimately. History furnishes 
 the facts and phases of legal evolution, its cultural 
 antecedents, its consequences, the total mechanism of 
 the forces and obstructive elements which have deter- 
 mined the scope of life, and out of which the law has 
 come as one of their products. At this point, philosophy 
 gathers up these materials, and investigates which 
 of them have been, and which will be, of value in the 
 juridical order, and in the teleological evolution of the 
 universal process. 
 
 Neither for Kohler nor for Post can there be any 
 philosophy of law without universal history. And if a 
 man like Hegel was able in a certain measure to con- 
 struct such a philosophy, it was due to the fact that 
 he had divined with the intuition of genius the posi- 
 tive element which his own age had failed to recognize. 
 
 The agreement between Post and Kohler does not, 
 however, extend further. While Post starts with a 
 kind of mechanical pantheism and places the general 
 evolution of law at the base of his pilosophy, Kohler 
 founds his system on the Hegelian doctrine (with the 
 departures before indicated), and therefore joins with 
 the historical element another, an d priori factor, the 
 relation between which is not methodological as with 
 Post, but metaphysical as with Hegel. According to 
 
384 THIRD APPENDIX 
 
 Hegel, history is a dialectic unfoldment which proceeds 
 in consequence of the internal forces which impel it 
 by an ever present power; and which philosophy 
 constructs sub specie aternitatis in the form of a concept. 
 Finally, the underlying factor of history is likewise 
 different in Post and Kohler. Post bases it on the 
 ethnic element, and Kohler relies on the cultural 
 relation. Bachofen had already given culture a deter- 
 minate position in the law; but, according to Kohler, 
 culture is not of itself the sum of spiritual forces which 
 at any time are operative in evolution. There is a law 
 of life, an immanent finality which indefectibly impels, 
 in various ways, mankind to its highest destiny. 
 
 [Touching the latest and most discussed interpretation of idealism, 
 see Kohler, "Bergson und die Rechtsphilosophie," in "Archiv f. R. 
 u. W. Phil.," Band vii, Heft i (October, 1913), pp. 56-69. Kohler 
 finds nothing essentially original in the "new Spinoza," especially in 
 his thoughts on evolution, stating that all this has long been taught 
 in the school of Hegel. Kohler discovers, however, in Bergson's 
 treatment of intuition a new life for the metaphysics of history of 
 great importance for the jurist, as is shown, as he thinks, peculiarly 
 in the jurisprudence of Rome and England. — Editor.] 
 
INDEX 
 
 [The numbers refer to the pages.] 
 
 Abraham, 8. 
 
 Acts, 275 ff. 
 
 Administrative Jurisdiction, 267 ff. 
 
 Adoption, 115 ff. 
 
 Adversarial Procedure, 260 ff., 291. 
 
 Aetleidung, 116. 
 
 Agriculture, 55, 56, 121, 177. 
 
 Ahrens, 25, 347, 350. 
 
 Albericus de Rosate, 9. 
 
 Albertus Magnus, 8, 10. 
 
 Alexander VI, 227. 
 
 Alexander of Hales, 282, 288. 
 
 Alfarabi, 220. 
 
 Althusius, 223. 
 
 Anaya, 274. 
 
 Ancestor Worship. 52, 212. 
 
 Animals, 69: as value representa- 
 tives, 166ff: liability for, 188ff. 
 
 Appeal, the, 246 ff. 
 
 Aquinas (Thomas Aquinas, q. v.) 
 
 Arbeitsordung, 178. 
 
 Archelaus, 350. 
 
 Aristophanes, 218. 
 
 Aristotle, 5, 6, 7, 86, 89, 90, 95, 129, 
 217, 218, 220, 223, 326, 331, 
 336, 345, 350, 351, 357, 370. 
 
 Arrest, 248. 
 
 Artificial Relationship, 114 ff., 382. 
 
 A^ssors, 256. 
 
 A^ociation of American Law 
 School, vii. 
 
 A(;tachment, State, 266. 
 
 Attempts, 287. 
 
 Aufsichtsrecht, 78. 
 
 Augury, the, 251. 
 
 Augustine, 8, 221, 350, 374. 
 
 Ausgleichung, 187. 
 
 Averroes, xUv, 9, 220, 223, 326. 
 
 Avicenna, 220. 
 
 Aztecs, 221, 235, 383. 
 
 Bachofen, 379. 384. 
 Bailment, 149. 
 Baldus, 9. 
 
 Bankruptcy, 284 ff. 
 
 Barter, 129 ff., 163 ff. 
 
 Bartolus, 9, 11. 
 
 Bastiat, 360. 
 
 Becket, 222. 
 
 Beneficium Excussionis, 160. 
 
 Bentham, 354. 
 
 Benutzungsrecht, 77. 
 
 Bergbohm, 349. 
 
 Bergson, 384. 
 
 Berkeley, 19. 
 
 Bernhoft, 379. 
 
 Berolzheimer, ix, xxi, xxiii, 269, 
 
 321, 336, 337. 
 Beschlag, 266. 
 Bill of Rights, 229. 
 Binding, 133. 
 
 Blood Fraternity, 114, 117 ff. 
 Blutrache (Kin-Revenge, q. v.) 
 Bodinus, 223. 
 
 Body Pledge, 141, 142, 143,158,159. 
 Body Politic, law of, 207 ff. 
 Bondo-Recht, 94, 191. 
 
 Csesareanism, 221, 225. 
 
 Caldwell, Wm., xxxv ff. 
 
 Caliphate, the, 221. 
 
 Callicles, 350. 
 
 Calvin, 362, 363. 
 
 Campanella, 12, 338, 342. 
 
 Capital, 56. 
 
 Capital Debt, 172. 
 
 Capital Punishment, 290. 
 
 Capture Marriage, 100, 106. 
 
 Carlyle, 366. 
 
 Carolina, the, 285. 
 
 Carter, Orrin N., xxv ff. 
 
 Castiilejer, 335 ff. 
 
 Causality, 33 (6). 
 
 Chance, 29 (4), 89 ff., 136, 137, 165, 
 
 166, 373. 
 Charlemagne, 220. 
 Chieftainry, 45, 47, 213, 232 ff., 
 
 246, 255, 278, 368, 369. 
 Church and State, 221 ff. 
 Claims, 84 ff., 258 ff. 
 
386 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Class Constitution, 238. 
 
 Class, Law of, 92 ff. 
 
 Classical School of Criminal Law, 
 
 372 ff. 
 Clement, St., 362. 
 Collectivism, 50 ff., 120 ff., 219. 
 Collectivity and Individualization, 
 
 49, 109, 120 ff. 
 Communal Ownership, 38, 109, 
 
 120, 217. 
 Community of Wives, 219, 382. 
 Comparative Law xliii,ll, 106 (n.), 
 
 378 ff. 
 Compensation, 187 ff. 
 Compulsory Portion, 186, 203 ff. 
 Compulsory Training, 284. 
 Compurgators, 254. 
 Comte, 336, 361. 
 Conditional Sentence, 287. 
 Congregationism, 36. 
 Constantine, 222. 
 Contingency and Law, 89 ff. (see 
 
 Chance). 
 Contrat Social, 10, 227. 
 Council of Constance, 9. 
 Courts, 255 ff. 
 Criminal Justice, 281 ff. 
 Criminal Law, 268 ff., 372 ff. 
 Criminal Procedure, 291 ff. 
 Criminology, 290, 292. 
 Croce, 336, 337. 
 Crusades, 221. 
 Culpa in Concrete, 148. 
 Culture, Development of, 28 ff. : 
 
 and Law, 58 ff. 
 Culture State, 208 ff. 
 Curialists, 9, 222, 223. 
 Cynics, 362, 363. 
 
 Dante, 220, 223. 363. 
 Dargun, 379. 
 
 Darwin, 335, 354, 367, 370. 
 Deceitful Offenses, 290. -. 
 Default, 262. 
 Definitions, 30 (5). 
 Demons, Belief in, 270 ff., 276. 
 Deportation, 285. 
 Descartes, 336, 337, 361, 363. 
 Divine Judgments, 251 ff. ■ 
 Divisible Inheritance, 196 ff. 
 Doctrinalism, 365. 
 
 Document, the, 263. 
 Dominicans, 8. 
 Dubois, 223, 302. 
 Dumas, xviii. 
 Duns Scotus, 9, 351. 
 Durkheim, 378. 
 
 Eckhart, xliv, 326. 
 Egoism, Necessity of, 60, 125, 145. 
 Eleatics, xvi, 20, 337, 338, 339. 
 Elective Compensation, 91. 
 Encyclopedia, the, 336, 347, 349. 
 Enlightenment Period, 38, 347, 
 
 365. 
 Entail, the, 204, 205. 
 Epiphenomenonalists, the, 360. 
 Equity, 86. 
 Erbschein, 88. 
 Ethos, 319, 368. 
 Eucken, 355. 
 
 Evolution and Psychic Life, 36. 
 Evolution, Teleology of, xxii. 
 Execution, 259, 264, ff. 
 Exogamy, 103 ff. 
 Expropriation, 133, 208. 
 Extinction of Debts, 150 ff. 
 
 Family Education, 108 S. 
 Family Law, 98 ff . 
 Family Organization, 105 ff. 
 Family Property, 109 ff. 
 Fanaticism, 36. 
 Federated States, 297 ff. 
 Feuerbach, 337, 360. 
 Fichte, 13, 342. 
 Fideicommissum, 205. 
 Foster Paternity, 109, 114. 
 Fouilee, 346. 
 Foundations, 206. 
 Francis, St., 362, 363. 
 Franciscans, 9. 
 Frederick the Great, 10. 
 Free Portion, 203. 
 Freiteil, 203. 
 Fulfillment, 151 ff., 161. 
 Future Estates, 204. 
 
 Gabler, 337. 
 Gans, 378. 
 Gareis, 348. 
 Gary, x. 
 
INDEX 
 
 387 
 
 [The numbers refer to the pages.] 
 
 Geyer, 348. 
 
 Ghibellines, 223. 
 
 Gifts, 184 ff. 
 
 Giner, 366. 
 
 Goethe, xvi, xvii, 23. 325, 302. 
 
 Good Faith, 83, 133, 138, 139. 
 
 144. 
 Goschel, 337. 
 Gottesurteil, 251 ff. 
 Gray, viii. 
 Gregory, St., 362. 
 Grotius, 6, 10, 223, 288, 351. 370. 
 Group Marriage, 51, 52, 100, 103, 
 
 217. 
 Guardianship, 118. 
 Grundbuchrecht, 88. 
 Gynarchy, 107. 
 
 Hallische Jahrbiicher. 337. 
 
 Hamann, 365. 
 
 Hauptgutschuld, 172. 
 
 Hegel, xxi, xliv, 10, 11, 13, 14, 16, 
 19, 20, 22. 23, 25, 26, 27, 41, 
 43, 208, 230, 325, 326, 328, 
 329, 331, 335 ff., 344, 353 ff., 
 357 ff., 362 ff. 
 
 Hegelian, xxii. 
 
 Hellwig, 273. 
 
 Helotry, 214 (see Slavery). 
 
 Henry II, 222. 
 
 Heraclitus, 335, 338. 345. 
 
 Herder. 23, 365. 
 
 Hinrichs, 337. 
 
 Hippias, 350. 
 
 Historical School, 10, 353, 354, 
 360, 365, 378. 
 
 Hobbes, 10, 219, 225, 352. 
 
 Homer, xviii. 
 
 Horigen-Verhaltnisse, 78. 
 
 Howitt, 379. 
 
 Humanism, 365. 
 
 Hume, 19. 
 
 Hypotheca, 156. 
 
 Identitatsphilosophie, 13. 
 Ihering, 11, 25, 26, 184, 361. 
 Illegitimate Children, 111 ff. 
 Illogical, the, in History, 28 ff. 
 Immaterial Things. 72. 73, 77, 120 ff. 
 Immovable Things, 120 ff. 
 
 Incas, 221. 
 
 Individualism, 49 ff.; 120 ff., 196, 
 
 200, 205, 209. 
 Indivisible Inheritance, 196 ff. 
 Inheritance, 192 ff. 
 Inheritance Agreements, 201 ff. 
 Inquisitorial Procedure, 200 ff., 
 
 291, 292. 
 Insurance, 149, 175 ff. 
 Interest, 136, 170 ff. 
 International Law, 294 ff. 
 Invention, 55, 122, 123. 
 
 Jacobi, 365. 
 Jains, the, 339. 
 James, xxi. 
 John of Paris, 223. 
 John of Salisbury, 222, 225. 
 Joint Liability, 161 ff. 
 Judge, Functions of the, 257 ff. 
 Judgment of God, 251 ff. 
 Judgment, Preliminary, 248. 
 Judgments, Final and Interlocu- 
 tory, 260. 
 Juristenrecht, 256. 
 Juristic Persons, 67, 81. 
 Justice, Administration of, 241 ff. 
 Jus Gentium, 350. 
 Justification of Punishment, 281 ff. 
 
 Kant, 12, 14, 18, 19, 20, 26, 99, 142, 
 319, 338, 339, 342, 344, 347. 
 349, 352. 359. 
 
 Kingship, 232 ff. 
 
 Kin- Revenge, 64, 65, 268 ff., 275 
 ff., 291. 382. 
 
 Kirchmann. 360. 
 
 Kocourek. xv ff. 
 
 Kohler. biography, xv ff. ; works, 
 xviii; bibliography, 311; phil- 
 osophy of law, 319 ff.; phil- 
 osophical position, 335 ff. 
 
 Kommenda-Geschaft, 173. 
 
 Krause, 25, 336, 347, 358. 
 
 Lamarck. 370. 
 Lange, 346. 363. 
 Lao-Tsze. 338. 
 Lasson, xxi. 27, 319 ff. 
 Laungild, 185. 
 
388 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Law, Distinguished from Morals, 
 etc., 59. 
 
 Lawful Acts, 82, 263. 
 
 Law-Man, 256. 
 
 Legal Order and Peaceable Regu- 
 lation, 63 ff. 
 
 Legal State, 208 ff., 371. 
 
 Legislative Policy, 210, 356. 
 
 Leibniz, 336, 337. 
 
 Leist, 379, 381, 383. 
 
 Leopardi, 362. 
 
 Leroy, vi. 
 
 Letourneau, 379. 
 
 Liability, 187 ff., 276. 
 
 Liberalities, 147 ff. 
 
 Liberty of Contract, 140. 
 
 Licenses, 77. 
 
 Life Pension, 75, 76. 
 
 Limitation, Statutes of, 31 (a). 
 
 Limited Inheritance, 204. 
 
 Locke, 127, 228. 
 
 Logical, the, in History, 28 ff. 
 
 Longobards, Code of, 185. 
 
 Lubbock, 379. 
 
 Luther, 363. 
 
 Machiavelli, 227, 228. 
 Mackenzie, 336. 
 Maclennan, 379. 
 Magic, 270. 
 Mahabbarata, 33 (a). 
 Maine, 379. 
 
 Marriage (see Family Law) . 
 . Marsilius of Padua, 223. 
 Marx, 163, 337, 360. 
 Materialism, xliv. 
 Material Things, 72, 120 ff. 
 Matriarchy, 105, 107, 111, 193, 
 
 382. 
 Merkel, 25, 281, 348, 354, 372, 
 
 274, 375. 
 Metaphysics, xxi, xxii, 18, 339, 
 
 346. 
 Milk Relationship, 114. 
 Mill, Stuart, 336. 
 Miraglia, ix. 
 Money, 165 ff. 
 Montesquieu, 229, 288, 349. 
 Morgan, 379. 
 Movable Things, 120 ff. 
 Mutterrecht, 328 (see Matriarchy). 
 
 Natural Law, 5, 6, 9, 10, 25, 2fi. 
 
 75, 98, 222, 223 (n.), 230, 25S. 
 
 350 ff., 359, 360, 368, 378. 
 Negligence, 150, 276. 
 Neo-Hegelianism, 11, 22, 336, 
 
 337, 338, 340, 341. 
 Neo- Hegelians, xv. 
 Neo- Kantianism, 26. 
 Neo-Platonists, 335. 
 Neubecker, 133. 
 Neukamp, 349. 
 Nietzsche, 11, 22, 27, 208, 335, 
 
 366 ff., 377. 
 Nobility, 96, 214. 
 Non-Contentious Jurisdiction, 293. 
 Notwehr, 64. 
 
 Oath, the, 254. 
 Obhgations, 72, 73, 134 ff. 
 Occam, 9, 223. 
 Ordeal, the, 252, 382. 
 Original Acquisition, 127 ff. 
 Ownership, 72, 120 ff., 127 ff., 219. 
 
 Palaver, the, 261. 
 
 Panlogism, 339. 
 
 Pantheism, 220, 225, 337, 334, 345, 
 
 348, 373. 
 Parliament, 211, 225, 228, 232, 
 
 236, 238 ff. 
 Partition, 91. 
 
 Partnership, 148, 173, 179 ff. 
 Pathological Conditions, 39. 
 Patriarchy, 105, 107, 193 ff 
 Paul, St., 374. 
 Peaceable Procedure, 293 ff 
 Peculium, 94. 
 Personality, 80 ff. 
 Personality, Principle of, 213. 
 Persons, Law of, 92 ff. 
 Petrarch, 363. 
 Pflichtteil, 203. 
 
 Philosophy, Legal and General. 3 ff. 
 Phoenicians, 184. 
 Plato, 129, 216 ff., 335, 338, 345. 
 
 347, 350, 358, 367, 370, 371. 
 Pledge, 72, 80, 141, 152 ff. 
 Pledge Service, 93. 
 Plutarch, xvi. 
 Podebrad, 302. 
 Polyandry, 100. 
 
INDEX 
 
 389 
 
 [The numbers refer to the pages,] 
 
 Polygamy, 9, 100. 
 
 Popular Assembly, the, 237 S. 
 
 Positive Law, xliii. 
 
 Positivist School of Criminal Law, 
 
 372 ff. 
 Post, 379, 380 ff. 
 Pound, xvi. 
 Praetorian Edict, 11 
 Primogeniture, 198. 
 Procedure, 243 ff. 
 Proof, 262 ff. 
 Property, Law of , 120 ff . ; as a whole, 
 
 191 ff. 
 Protagoras, 350. 
 Proudhon, 337. 
 Psychic Disposition, 43. 
 Psychic Impulses, 45. 
 Public Houses, 286. 
 Pufendorf, 288. 
 Punishment, Need of, 286 ff. 
 Purchase Marriage, 100. 
 Purchase of Revenge, 271, 272. 
 
 Rechtsstaat (see Legal State). 
 
 Records, Public, 32, (b), 88, 89. 
 
 Recourse, 91. ' 
 
 Referendum, 241. 
 
 Religion and Procedure, 250 ff. 
 
 Renan, 366. 
 
 Renascence, the, 228. 
 
 Rentenkauf, 172. 
 
 Representation, 196. 
 
 Retaliation, 268 ff. 
 
 Reversionary Inheritance, 204. 
 
 Richtiges Recht, 328, 359. 
 
 Rights and Cultural Order, 66 ff . ; 
 objects of, 70 ff. ; general and 
 limited, 71 ff. ; types of limited, 
 75 ff. ; of representation, 81 ; 
 dual system, 87 ff., 133; of 
 personality, 259. 
 
 Ring, xxiii. 
 
 Roder, 25. 
 
 Romanticism, 353, 365. 
 
 Rousseau, 6, 10, 225 ff., 237, 347, 
 349, 352. 
 
 Ruge, 337. 
 
 Sachemism, 369. 
 
 Sanctuary, 64, 273, 274, 278, 382. 
 
 San Juan, 362. 
 
 Sankara, 335, 344. 
 
 Sankhya School, 338 ff. 
 
 Savanarola, 363. 
 
 Savigny, 10, 335, 360. 
 
 SchafBe, 354. 
 
 Schelling, 11, 13, 335, 342, 345, 
 
 353, 357, 370. 
 Schlosser, 366. 
 Schmidt, Alfred, 228. 
 Schoffengericht, 256. 
 Scholasticism, 5, 7. 
 Scholastics, 8, 10, 171, 288, 336, 
 
 360, 374, 375. 
 Schopenhauer, 9, 22, 335, 340, 374. 
 Schroder, 381. 
 Schubert, 222. 
 Schiicking, 302. 
 Schuppe, 354, 380. 
 Schwarzenberg, 285. 
 Securities, 78 ff., 152 ff. 
 Self-Help, 267. 
 
 Separation of Property, 1 10 ff . 
 Sequestration, 266. 
 Service Agreement, 177 ff. 
 Servitudes, 71 ff., 126. 
 Skeptics (Scotch), 12, 342. 
 Slavery, 78, 92 ff., 136, 141, 142, 
 
 188, 191, 213, 241. 
 Smith, Adam, 129, 217. 
 Sociology, 320, 321, 332. 
 Socrates, v., 347. 
 Solon, xvi. 
 
 Sophists, the, 347, 350. 
 Sources of Law, 86. 
 Spaventa, 337. 
 Speculation, 61, 146. 
 Spencer, 336, 354, 358, 360. 
 Spinoza, 225 ff., 335, 337, 338, 345, 
 
 354, 374. 
 Staatsvertrag, 6, 10, 224. 
 Stahl, 354, 358. 
 
 Stammler, 26, 349, 350, 354, 358, 
 
 359. 
 State Activity, 241 ff. 
 State Administration, 241 ff. 
 State Law, 207 ff. 
 State Theorists, 216 ff. 
 Statistics, 373. 
 Stirner, 337. 
 Stock Company, 183. 
 
390 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Strauss, 337. 
 
 Stuarts, the, 225. 
 
 Substitution, Principle of, 71, 192. 
 
 Substitutive Family, 118 ff. 
 
 Succession of Heirs, 204. 
 
 Sufis, xliv. 
 
 Sufism, 9, 220, 326. 
 
 Superman, the, 364 ff. 
 
 Super- National Law, 295 ff., 299 ff. 
 
 Suretyship, 158 ff. 
 
 Suttee, 101. 
 
 Sylvester, Pope, 222. 
 
 Taboo, 67, 123. 
 
 Technic of the Law, 66 ff. 
 
 TerritoriaUty, 212, 215. 
 
 Testamentary Succession, 199 ff. 
 
 Testimony, 263 ff. 
 
 Theresa, St., 362. 
 
 Thibaut, 378. 
 
 Things, Law of, 120 ff. 
 
 Thomas Aquinas, 8, 10, 351. 
 
 Title, 72, 77, 88, 
 
 Title of Execution, 259. 
 
 Tocqueville, v. 
 
 Torture,'39, 40, 255, 292. 
 
 Totemism, 45, 211, 212, 369. 
 
 Trade, 55. 
 
 Treaties of Justice, 296. 
 
 Treuga, 274. 
 
 Trial Maxims, 257. 
 
 Trusts, 141. 
 
 Two Sword Theory, 222. 
 
 Unlawful Acts, 28, 263. 
 Usucaption, 128. 
 
 Usufruct, 72, 75, 76, 110, 155, 172. 
 194. 
 
 Usury (see Interest). 
 
 VedSnta, xliv, 338, 339. 
 Vera, 337. 
 
 Verhandlungsmaxime, 258. 
 Verlagsrecht, 77. 
 Veronese School, xviii. 
 Village Community, 219. 
 Vis Major, 150. 
 Voet, 11. 
 Volksrecht, 256. 
 Vow, the, 139. 
 
 Wealth, Culture of, 54 flf. 
 Weltanschauung, 256. 
 Weregild, 271, 272. 
 Westermarck, 379. 
 Wills, 199 ff. 
 Windscheid, 11. 
 
 Witches, Persecution of, 39, 40. 
 Wolff, 10, 347, 349, 350. 
 Wundt, 346. 
 
 Zalesky, 217. 
 Zeller, 19. 
 Zwischenurteile, 260. 
 
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