NOTES AND ABSTRACTS.
CONDUCTED BY J. D. FORREST, A. T. FREEMAN, AND H. A. MILLIS.
Sociology as an Introduction to Law. The reconcilement between the law and sociology is an accomplished fact. It is no less efficacious for having been slow and difficult, and the reciprocal use which the moral and juridical sciences, on the one hand, and the social sciences, on the other, make of one another permits a still more intimate union to be foreseen in the near future. This union will consist neces- sarily in a synthetic unity of their principles and a rational classification of corre- . spending phenomena. It will then be found that the philosophy of law will bring its data in abundance to social psychology, and the general theory of the state will con- stitute but an integral chapter of sociology.
These previsions perhaps appear premature. Can a science as ancient, as com- plete as that of the law, depend upon another science not yet formed, without precise laws, without determined classification ?
We judge it superfluous to insist on the averred fact that law does not constitute the principle of social life, but one of its phenomena. But then " it is evident," as H. Spencer observes, " that a more special science cannot be perfectly comprehended as long as the more general science which includes it is not." Their cooperation is imposed then at the first onset. It is far from being premature, since the material fur- nished little by little by one side or the other is in waiting but too long. And it is to be noted that it is not alone sociology that attacks questions of law; juridical theory also daily meets problems insoluble in its own domain. Their case pending hinders progress and constitutes a permanent obstacle to generalizations more broad, and therefore more fruitful.
Let us cite some examples at random of investigations which are discussed help- lessly in the absence of premises capable of embracing the problems in their whole extent.
(a) The principle of nationalities has already forced the door of public and of international law. Formulated thus by Bluntschli : "Every nation is called upon to form a state, every state ought to be a national person," it proclaims as the subject of law a social individuality whose determination pertains entirely to sociology. The consequences are grave in every case ; they hold in suspense the question even of the subjects of international law. Who are they ? Juridical persons, collectivities indi- vidualized by acts of positive law, or living organisms, natural persons, collective individualities, able to invoke their innate rights after simple legal proof? In this latter case there is put a question of state and capacity, a previous question of fact, the necessary criterion of which can be furnished only by a detailed sociological theory.
() A controversy forty years old has been abandoned by jurisprudence because of the Hack of bases large enough to permit the problem to be faced in its entiutv. The question was put by Robert von Mohl : Does a social law {Gesellschaftsrech: distinct from public and private law? It was generally (Treitschke, van Krieken, Bluntschli, etc.) < n the negative. Hut then how was the canonical law to be
classed, which formerly rivaled civil legislation, and. above all. the statutes and rules of powerful associations i> uh often make then
obeyed more easily than the legal autlx < n. too, what place was to be
assigned to juridical science, that collective work, the incontestable source of p law, and to custom, which is often maintained along side of, indeed even in opposition iigatory standards? There are thus many social phenomena which await dis- tribute n |iy a theory more positive than that of natural law, and more synthetic than that of positive law.
(f) In public law the will of the state, of the legislator, of the governmental power, etc., is constantly spoken of. Yet modern psychology refuses to volitional
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