tion of such egoists, who coax and club each other into the pursuit of social ends.1 It is a result of this initial error that he obviously believes 2 that the pressure of society upon the individual has been increasing through the course of human history, and is likely to increase. On this point the studies of the modern sociologists and the researches of the younger school of legal historians are pointing to a directly contrary conclusion. Man appears in history as a mere constituent particle in a horde: it is the horde that feels and wills and acts, carrying the individual with it like a drop of water in a wave. As society develops higher and more complex forms of organization, the demands of society upon the individual increase, indeed, in number and variety, and it is this fact probably that has led Jhering and many others astray, but at the same time the 1 In his third volume, which was never written, Jhering intended to discuss the topics "sense of duty," "love," and "ethical self-assertion"; and he indicated the position which he proposed to take by saying: "I, too, come finally to the result that the individual is to carry morality within himself as the law of himself, and that in acting morally he only asserts himself: but I come to that point, I do not start from it." Ibid., vol. ii, p. 102. 2 But indicates his reluctance to believe, in a way that shows his instinctive good sense. Ibid., vol. i, pp. 513 et seq. It has long been a commonplace of the writers upon Greek and Roman history that the absorption or "merger," to use a legal phrase, of the individual in the civitas was something so different from our modern conceptions as to be difficult to realize; but we have cherished the idea that a much higher degree of personal independence existed among our Teutonic ancestors. On this point the leading German legal historian of our day expresses a directly contrary opinion. "A prominent characteristic of early Teutonic law is the inflexible strictness with which it subjects the single person to the dominant social relations, and the single legal issue to the views of the whole social body. The individualistic character that is not uncommonly attributed to our earliest law, is wholly lacking. More than in later times is the individual fettered to the will and the usages of the various associations in which he moves. . . . The visionary ideal of Teutonic liberty in the primeval forest applied in fact only to the outlawed and outlandish men who were excluded from the circle of tribal companionship.. It is not the liberty of the individual, but the equality of all free partakers of the law that is peculiar to the earliest Teutonic system. This equality, however, could be maintained only by the high degree of coercion exercised upon the individual a coercion, to be sure, which, if consciously felt at all, was scarcely felt as hardship or constraint, because the individual, as an integral part of the community, was dominated by its manner of regarding things." Brunner, Deutsche Rechtsgeschichte (1887), vol. i, pp. 111, 112. ... ... intensity of the social pressure as a whole is progressively diminished.1 Personal freedom increases, and with it the sense of individuality. In last analysis, individualism itself, as we understand it to-day, is the product of social evolution, and the freedom of the individual is not the starting-point, but the goal of human development. In this phase the Hegelian statement that the development of law is "the development of the idea of freedom," however it has been misconceived and misapplied, has in it a profound truth. The contrary theory - that social evolution must have started with the purely egoistic "natural man"— nevertheless so dominated Jhering's thought that it determined the structure of his whole book. The question that he sets himself is: How is the individual brought into the service of society and induced to minister to its ends? His answer, so far as it is developed in the two volumes of which the work consists, is: Reward and coercion. Reward plays its chief rôle in economic life, and the long chapter 2 which deals with this subject is mainly devoted to economics. He apparently assumes that the development of commerce precedes the development of law and the state, and that the state is preceded by voluntary association for common ends. Coercion is then taken up, and first the "mechanical" coercion which is exercised by law. In the 'second volume he goes over into morals, developing his "historical-social" theory, and dealing in extenso with social usages which we are not accustomed to regard as either moral or immoral, but to which society constrains obedience by "psychological" coercion. The latter half of the volume is devoted wholly to manners—the last third (two hundred and forty pages) to courtesy (Höflichkeit). The motive that led Jhering 1 To appreciate the truth of this paradox — that increasing variety of social demands is perfectly compatible with an increase of personal freedom — we need not go so far afield as do the historical sociologists. We see the same thing when we compare life in a small modern village with life in a great city. In the village the demands of the social life are fewer, and yet the social pressure, the restraining and coercive power of local sentiment, is greater than in the city. City life makes more demands upon the individual, and yet it leaves him really and consciously freer. 2 Vol. i, ch. vii, pp. 93-233. into this apparently remote field was the desire to demonstrate that all "social imperatives"-fashion, manners, morals and law are adapted to social ends and subserve the "conditions of existence of society." To prove this for law alone seemed to him an imperfect solution of the problem. In spite of much serious thought, much keen analysis and many amusing divagations, this portion of the book is hard to read; and the foreigner is impressed, as his countrymen have been, with the feeling that the devotion of several of Jhering's best years to the study of social manners was a regrettable waste of energy. Whether Jhering himself felt this, or recognized only the fact that for the first time he had not "scored" either with his colleagues or with the public, the result was the same. He wisely abandoned the attempt to complete his "teleological system of the moral order of the world"- if carried out on the scale set in his second volume, its completion would have necessitated not merely a third but probably a tenth volume — and returned to legal investigations. One separate book was thrown off in connection with his labors on the second volume of the Teleology of Law, as the Struggle for Law had been thrown off while he was writing the first volume. This dealt with "fees — not lawyers' fees, however, or even professional fees in general, but Trinkgelder. It attained the moderate success (for Jhering) of a third edition, as did ultimately the Teleology; but it met with even greater professional disapprobation than the second volume of the larger work. Reading the Teleology again, as I have done for the purposes of this article, I am struck with the fact that the digressions are the most readable parts of the book. So long as Jhering clings to the main thread of his argument, he is almost tedious a proof, if one were needed, how far he had strayed from his proper field. In his excursions, however, he is invariably interesting. So, for example, in his eloquent protest against laisser faire in the law of contracts; 2 so in his discussion of the difference between wages and governmental 1 Das Trinkgeld, 1882; 3d ed., 1889. salaries, where, after pointing out that salaries are not based, like wages, on the value of the service, since the state pays only partly in cash and the rest in honor, he adds that the correction is found in "the rich wife," who represents the partial conversion of the honor into cash ;1 so in his denunciation of joint-stock companies, or rather of the absence of control over these companies which marked their first appearance in Germany, and led to the same abuses there as in other countries;2 so in his vehement attack upon the jury as an institution that formerly subserved important ends, but has outlived its usefulness; so in his demonstration of the advantages of a strict criminal code to the criminals themselves, since popular justice is far more cruel than the most Draconian system administered by government an admirable text for a sermon on the significance of lynch-justice in our own country; so in his analysis of the principle that underlies the prevention of cruelty to animals, where he shows that the purpose of such laws is purely social, that they are made for the sake of man, and that to explain them by attributing rights to animals would logically constrain us all to become not only anti-vivisectionists, but vegetarians.5 Quite in his best vein is the exhortation addressed, in the second volume, to students of ethics, not merely to investigate their problem historically, but to start with comparative philology and mythology, since these are "the oldest and most trustworthy witnesses as to primitive popular views of morality." The two together may be described as the palæontology of ethics. In the deeds of the gods, in all that they permitted themselves and were able to permit themselves without forfeiting in the eyes of the people their claim to veneration, there is preserved for us the most ancient judgment of humanity as to what is morally permissible. . . . The gods are the petrified types of the prehistoric moral man." 1 Zweck im Recht, vol. i, pp. 200, 201. 2 Ibid., vol. i, pp. 220-225. 8 Ibid., vol. i, pp. 408-420. 5 Ibid., vol. ii, pp. 141-144. Incidentally this argument shows how shallow is Macaulay's famous fling at the motive which actuated the Puritans in suppressing bear-baiting. The Puritans were quite right. 6 Ibid., vol. ii, p. 126. Not, perhaps, the most valuable, but certainly the most amusing pages in this volume are devoted to the teleology of fashion (die Mode). Fashion expresses, to him, the supposed interest of a social class — the class which commonly calls itself "society." It represents the constant effort of this class to distinguish itself externally from the common herd. In these days of democratic equality, of improved manufacturing processes and of facile and rapid production, the imitative herd presses so closely upon its betters that these are unable to maintain any semblance of differentiation otherwise than by constant change. All that they can do is to keep a little ahead of their pursuers. Hence, the rapid changes of modern fashion. But to revert to more serious matters. It is refreshing, in these over-sentimental days, to see the social value of force so fully recognized and so courageously proclaimed as we find it in this work. All law, all right, Jhering maintains, are based historically upon triumphant force: they are "the policy of force." Law is thus at first the mere servant of power. But "at the moment that power calls in law to announce its commands, it opens its house to justice, and the reaction of law upon power begins. For law brings with it as inseparable comrades, order and equality." 2 But not even in the highest civilization does law become lord of power. "Power, if need be, can exist without law it has proved that it can. But law without power is an empty name." 3 To-day, when we speak of the reign of law, we think of power as merely the servant of law; "but at times the relation is reversed; power casts off its obedience to law and itself sets up a new law." Organized power revolts against law in the coup d'état; unorganized power, in the revolution. It is easy for legal theory to condemn these acts; but these disturbances ought to lead our theorists to take a different view of the 1 Zweck im Recht, vol. ii, pp. 230–241. Substantially the same theory was set forth a number of years ago in an editorial in the New York Evening Post on the question "Should a Dude wear White Gaiters?" The identity of the theory will scarcely justify a suspicion of plagiarism : it was undoubtedly a case of the attainment of the same truth by independent thinkers. 2 Ibid., vol. i, p. 353. 3 Ibid., vol. i, p. 253. |