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Der Zweck im Recht. By RUDOLPH VON IHERING. Vol. V. 8° pp. 567. Leipsic: BREITKOPF and HÄRTEL.
THE present volume is the offspring of another and still incomplete work-Der Geist des Römischen Rechts-a book which accomplished the complete reconciliation of the historical and philosophical schools of jurisprudence. The historical school, strange to say, had produced no able history of the Roman law. Ihering declared that the reason lay in the fact that the school was one-sided; it lacked the philosophical element. He undertook to supply the deficiency. His work was an attempt to trace the history and development of the legal idea, not merely to fix the date of certain statutes, and relate the course of legislation. The central thought of his masterly production was, that the true philosophy of law is the philosophy of its growth, and the true history of law is one which traces legal institutions back to their sources in the social conditions and habits of thought peculiar to the times which gave them birth. The battle-cry of the historical school that "Law is an unconscious development," died away into an echo before this onset. "In nothing," said Ihering, is a nation more clearly conscious of its needs and purposes than in the domain of law." Legal reforms are born in pain and conflict. But when men struggle, it is with a view to gain some desirable end. In this seeming platitude lay the pregnant apothegm inscribed on the title-page of the book now before us, as a motto and key to the whole system-Der Zweck ist der Schöpfer des ganzen Rechts. "All law is framed toward a certain end." This end or purpose which it is the function of law to realize, is the subject of the present inquiry. With genuine German thoroughness he begins with first principles and reasons somewhat as follows: Matter is governed by the law of causation, causa efficiens; mind is subject to the law of purpose, causa finalis. The law of causation, however, is but the working rule of matter; the world was created by an intelligent being and the law of purpose is the ultimate law. The will is a faculty of independent and original action, and acts always with a purpose. The mind of man, being thus a self-determining agency, a spring of independent action, may become a discordant force in the universe, and counteract the plan of nature. Nature has, therefore, enlisted the coöperation of man in her purposes, by rewarding his compliance with pleasure, and punishing with pain any disobedience of her laws. The same is true of brutes; and it is in the actions of animals that we can best observe the process of volition. Take the example of a brute drinking. The sensation, thirst, is nature's exhortation to drink. Notwithstanding his thirst, a well-trained hound will not drink if his master forbids it. Here we have selfdetermination, as the first element. He drinks because he feels a
want; that is to say, the ground of the purpose is in the subject himself. Again, he sees in the water a means of satisfying his craving; that is to say, he is dependent upon this external instrument. His existence is thus conditioned in the purpose to drink. These last two elements make up the idea of interest, or selfinterest, which is the spring of all action. Yet the so-called "disinterested actions" are not impossible. Some purposes are egoistic, i. e., self-aggrandizement is the primary object, and any good which may result to others is purely secondary. Other actions involve self-sacrifice; the good of others is the sole design, and the joy which comes from seeing them happy is the only subjective inducement to the act. Duty and love are the springs of disinterested action. Self-interest of a certain sort is there, i. e., the personality of the action is, to a certain extent, conditioned in the purpose; but it is of a different kind from the self-interest which amasses wealth and feeds ambition. In both cases, it is an effort at self-realization (Selbst-behauptung.) This is the highest generalization of human purposes. Every action is in some sense an attempt to effectuate the design of nature in man.
Of the two subdivisions, the egoistical, and the ethical or "disinterested" purposes, the latter will be treated of in the second volume, which is soon to appear. The egoistical purposes are: 1st, the preservation of physical existence (Physische Selbst-behauptung); 2d the accumulation of property (ökonomische Selbst-behaup tung); property is also indispensable, as a means of gratifying other and higher dispositions than physical cravings. 3d, the maintenance of legal rights (rechtliche Selbst-behauptung). The first purpose is dependent on the second for its certain accomplishment, and these two necessitate the third. Life and property are secure only when guaranteed by law and the State. Man exists in a dual relation, for himself as an individual, and for others as a member of society. Society has, therefore, an a priori existence, and the pactum unionis of Rousseau becomes superfluous. The social constitution embraces three propositions : Ist, I exist for myself; 2d, others exist for me; 3d, I exist for others. The individual has a claim upon society because his existence is conditioned in that of others; society controls the individual because her interests are bound up in him. The so-called state of nature is therefore simply one of barbarism, where men have not yet discovered what nature really ordains. Speaking abstractly, men's interests coincide, but do not conflict. The individual, however, is not always wise, and, since his personal desires are strong and immediate, he is sometimes tempted to pursue his own purpose, at the cost of his fellows. How is society to reconcile these warring interests and make the individual a willing coadjutor in her general plan? The answer to this question requires an analysis of. the whole social mechanism. Such an analysis is the truly magnificent design of the present work. Society plies the individual with motives,
egoistical and ethical. The consideration of the latter class of motives is reserved to the second volume.
The egoistical levers in the social mechanism are commerce and law. In commerce, society seeks to realize the conditions of its existence by a system of rewards. In trade, the individual receives an equivalent for all that he is called upon to give or perform; he contributes to the accomplishment of grand social purposes, because he thus gains the means of effectuating his own. The rewards which men receive are sometimes economic, as money and other objects of wealth; sometimes ideal, as honor, power and fame. Society honors none but those who have labored in her service. She does not require them to abjure the ambitions and covetings of individuals, but insists merely that their labor shall be of great benefit to her, and then she crowns them with laurels. Self-interest is the immutable foundation of commerce. Like the coral insect which lives only for itself and, dying, leaves its contribution to the mighty reef, so self-interest, its whole activity centred in the individual, has achieved, by indirection, the marvels of modern civilization.
The second lever is coercion, applied through the instrumentality of law and the State. The State is society as possessor of the power of coercion (Der Staat ist die Gesellschaft welche zwingt). There is no arbitrary division of society into sovereign and subjects, as in the systems of Austin and Bentham. These latter writers seem almost to have assumed for the State an a priori existence. Ihering regards the State as a growth, and as the product of enlightened self-interest. It is the organization of society for the purpose of actualizing the conditions of social existence by means of coercion. The government is simply a portion of the community to whom has been entrusted the task of executing the design of the State. Social or civil law is regulated force. It is a comprehensive expression for those interests which society is prepared to maintain by coercion. It need not be enacted and announced in the form of a lex; though in this way alone can it be surely distinguished from custom. It binds the subject legally and the sovereign morally; for it is of the essence of law that it be constant and certain, both in its substance and in its administration. Justice is another name for the common interest; it is that rule by which all may stand and prosper. Any act which society declares dangerous to the conditions of her existence, is a crime; and punishment is not a matter of philosophical retribution, but is a practical expedient to deter men from crime.
The foregoing brief summary gives but a slight hint of the wealth of novel and profound thought which this book contains, and none whatever of the perspicacity of statement, eloquence of diction and skill in illustration which characterize Professor Ihering as a writer. Enough has been said to show that his view of law, while philosophical, is utilitarian. There are many points of similarity between his system and that of Austin; but
in no sense can he be called an imitator of the latter. His work is undoubtedly the most profound and satisfactory contribution to the science of legal philosophy, since the days of Austin and Bentham.
The North Americans of Antiquity; their Origin, Migrations, and Type of Civilization Considered. By JOHN T. SHORT. 8° pp. 544. New York: Harper and Brothers. 1880.
IT IS commonly thought that America possesses no historic antiquity, no heroic and legendary period, no culture-heroes like those of prehistoric Greece, of legendary Scandinavia and Britain. Until recently it has been the custom of Europeans to taunt us with the lack of a grand past, with the absence of noble monuments of our early ages; and to this day even Americans themselves, in general, have but a faint conception of the grandeur and beauty which the slowly dissolving veil of antiquity is revealing to their sight.
Americans have at length, however, caught the enthusiasm which is making all the ancient seats of Europe and Asia to ring with the sound of the pick and the spade. Schliemann, Cesnola, Layard and Smith are emulated on the western continent by discoverers as ardent and indefatigable as themselves. European archecologists and historians are nobly matched by Squier, Stephens, Foster, Bancroft, and a host of lesser lights, who are digging deep into the soil of centuries and reaching far back into the darkness of the ages, to bring to light the remains and records of our prehistoric civilization. Especially has the last named of these-Hubert Howe Bancroft-produced a work that may well be called monumental, a labor of enthusiastic love and devotion that has insured him an immortality in the memory and annals of his country. Vast, however, as has been the toil of these men, and valuable as are the results, the progress of discovery is so rapid that their writings constantly need to be supplemented with records of the researches of more and still. more recent explorers. It is to this fact that the great worth of the volume now before us is partially due, though its chief value lies in the admirably comprehensive, compressed, and faithful manner in which it summarizes the stores of information that have been brought forth by all the previous workers in this domain.
It must not be inferred that Mr. Short is merely a compiler. He has, himself, spent many years of earnest labor in the field,
and every chapter in his volume bears unmistakable impress of original research and study. While drawing largely from the acquisitions of his predecessors, he very frequently adds the wealth of his own discovery, and often, even in important particulars, differs from the conclusions of others. Nor is this ever done without stating with remarkable justness the position of his opponents, and setting forth amply his grounds of dissent. Designing that his volume should serve as a manual of information relating to the earliest period of North American antiquity, and as an introduction to ancient American history, he devotes the most of his space to presenting a comprehensive view of the civilization of the mound-builders, cliff-dwellers, and Pueblos; while that most fascinating branch of the study-the traditional history and architectural remains of the Mayas of Yucatan and the Nahuas of Mexico-has received only such attention as could be given to the probable origin and the most remote growth of these ancient peoples. We believe the time is coming when the poets of America will desist from imitations of Hellenic rythms, or revamping the tales of ancient Europe, and sing the legendary glories of their own country in resonant epics whose very themes will make them grand. The poetry of the Quiché cosmogony the fall of Xibalba-the American Troy, which went down in blood and darkness—and the life and teachings of the saintly Quetzalcoatl, must yet be hymned in song that shall give us our Iliad, our Nibelungenlied and our Morte d'Arthur.
Notwithstanding all that has been thus far accomplished, the origin of the prehistoric Americans is by no means settled; but there is a strong probability that the ancestors of the Nahuas were closely connected with some Asiatic race. The facts arrayed in Mr. Short's volume show, almost beyond dispute, that northern Asia was the original home of most of the North American tribes. The autocthonic hypothesis, so enthusiastically advanced by Dr. Morton, and apparently so strongly supported by Agassiz's theory of the separate creations of races, seems to be wholly untenable, and, indeed, is rapidly losing ground among scholars. There are many indications that the mound-builders were preceded in this country by men of a much lower type; but there is, as yet, insufficient evidence to prove anything more than that they were contemporary with these people of a lower order. Dr. C. C. Abbott made a startling discovery, a short time ago, of numerous stone implements in what appeared to be undisturbed drift, at Trenton, N. J. Professor Shaler, however, after examining the deposit, concluded that, while it is of glacial origin, it was subsequently modified by water-action but he asserts that "if these remains are really those of man, they prove the existence of inter-glacial man on this part of our shore." Dr. Abbott, it must be remarked, believes that the Esquimau is the surviving representative of paleolithic and glacial man in North America. But it seems to us that,