Page:The Green Bag (1889–1914), Volume 25.pdf/134

This page needs to be proofread.

Neo-Hegelianism in Jurisprudence sistency is a consequence of the dualistic position. Berolzheimer is neither a con sistent empiricist nor a consistent ideal ist. He tries to combine two irrecon cilable positions.29 Ill Natural law of the eighteenth cen tury, and at all earlier periods, was a static system. "All schemes of natural law have undertaken each in its own way to furnish a project of an ideal code with an unchangeable, uncondi tionally valid content."30 The break with this theory came with the recogni tion of what we may call ideal law — the law suggested by morality — as a changing rather than a stationary sys tem, with the substitution, in other words, of an evolutionary ideal law for natural law. The break came with the idealistic philosophy of law dating from the formulation of the evolutionary doc trine of Schelling and Hegel. Both of these thinkers denied the reality of the object, their conception of evolution being ideological rather than dynamic. Schelling's position, however, gave an impetus to the formation of a new school, inaugurated by Savigny and Puchta, which applied the historical and empirical method to the study of past systems of law, yet gave its atten tion to positive rather than to rational or ideal law, and refrained from formu lating any theory of ideal law supplant ing the old theory of static natural law. Hegel developed Schelling's conception of a changing rational law, by demontrating that the rational law coincides in its development with each successive stage of the will. He conceived of the '* While the naive types of idealism and realism are contradictories, the critical types converge toward a common position, in the opinion of the present writer, but Dr. Berolzheimer's method is not of this sort.

  • 0 Stammler, quoted by Pound, 25 Harv. L. Rev.



ideal law as changing rather than static, but not changing in the dynamic sense, that view being reserved for the socio logical attitude, for evolution was treated as a dialectical rather than an objective process. The ensuing preoccupation of one school of jurisprudence in Germany with historical study of positive law, and of another school with an evolu tionary idealism which threw no light on the determination of the ideal law for a given period, was perhaps the result of the sterility of the Hegelian dia lectic in throwing virtually no light on the manner in which the logical neces sities of a given epoch impress them selves upon its institutions. Conse quently, in the ensuing period, we have the barren evolutionary idealism of Krause, Ahrens, and Herbart, the his torical positivism of Savigny and Puchta, and the mingling of the two in Dahn and Lasson. The break with this revised theory of Naturrecht, this theory of a changing rather than static law of the reason, and the substitution of the concept of a dynamic legal ideal, was to come not through a rebirth of abstract philosophy but through the transition from his torical positivism to systematic positiv ism and sociological theory. The influence of Comte and Spencer directed attention to principles of mechanical causality, and contributed the ground work of social mechanics to a progressing science of social dynamics still, at the present day, in process of development. The views of Ihering have been of great importance in helping to an understand ing of the causation of legal institutions, in the light of his studies of social dynamics and the psychology of the strife for the realization of legal concep tions. Berolzheimer's criticisms of Comte and Spencer are in large measure justi fied, if they might be more satisfactorily