SOCIOLOGICAL JURISPRUDENCE it is but a step to compare with the rules of other legal systems and to compare systems themselves. This was the theory of the Ius Gentium,' and doubtless to some extent the practice. It is to be seen in our own law at least as far back as Fortescue, and, though scorned by Coke, was well marked in the seventeenth and eighteenth centuries in the development of equity1 and the rise of the law merchant.2 The comparative tendency is followed by a philosophical tendency. Law is felt to be reason. It is not enough that a rule exist in one system or that it has its analogues in others. The rule must conform to reason, and if it does not, must be reshaped until it does, or must have reasons made for it. This was the dominant idea of the Ius Naturale. It is seen in continental Europe in the period after Grotius and in the usus modernus. In our law it is seen in the eighteenth and nineteenth centuries in the giving of "reasons" in which Blackstone and the lecturers on law who followed him in America were so prolific. To this philosophical tendency an analytical ten dency succeeds by way of revolt. The validity of the so-called reasons is examined. Being for the most part ex post facto and, though specious, neither historically sound nor critically adequate, they fall to the ground, and often carry the rules with them. Hence the analytical period usually coincides with a critical tendency and an era of reform through legislation. Such a tendency in Roman law culminated in the legislation of Justinian.3 In Germany it has overthrown the long-dominant Romanwere full of "putting differences" and "noting diversities." e. g. Keilwey, 50, 53. 57, Dyer, in b. 1 Spence, Equitable Jurisdiction of the Court of Chancery. I, 413.
- Wooddesson, Elements of Jurisprudence,
lxxix, in 1792 treats the law merchant as part of the law of nations. ' See, for instance, Code VII, 25, in which Justinian says of a classical distinction that it is "a mere puzzle" and "a vain and superfluous phrase."
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ism and brought forth a German code. In our common-law system it brought about the reform movement, inaugurated by Bentham, the force of which is not yet wholly spent. Along with this analytical tendency, sometimes beginning before it, sometimes after but as another phase of the revolt from the philosophical, there is an historical tendency. How far we see something of this in the classical Roman law I need not inquire. It preceded the analytical tendency in Germany, it has followed that tendency in France. In England, it seems to have followed. In either event, it completes the exposure of the specious explanations of the preceding period and insures the overthrow of pseudophilosophy. With the rise and growth of political, economic, and sociological science, the time is now ripe for a new tendency, and that tendency, which I have ventured here tofore to style the sociological tendency, is already well-marked in Continental Europe.1 With us, the profession, at least, is still for the most part under the domination of the methods and phrases of the second tendency, long after that tendency has spent its force. The practitioner is little, if at all, beyond Blackstone and his nine teenth-century imitators. Even a respec table law-school advertises that it teaches "the law and the reasons." These "rea sons" of the eighteenth -century type are still found in text books in common use, and the books which students read are too often full of them. They are to be found in judicial decisions also.2 Distinc tions of substantive law which have their origin . in forgotten niceties of practice are 1 See Stammler, Wirthschaft und Recht (1906), Ehrlich, Soziologie und Jurisprudenz (1906), Gumplowicz, Allgemeines Staatsrecht (1907), Vaccaro, Les Bases Sociologiques du Droit et de l'Etat (1898), Grasserie, Les Principes Socio logiques du Droit Civil (1906). 2 To take a striking example, if an old one, a court of high authority in explaining the rule
