leon, the whole European continent, called forth in Germany a series of phenomena, which collectively may be described as the romanticism of the philosophy of law. These phenomena are closely connected with the romantic tendency in art and culture, and borrowed many of their weapons from the conservative side of the idealistic systems, as well as from the historical school. In this manner Karl L. von Haller, with stubborn logical methods, would restore the whole mediæval idea of the state; that is, he denies that the idea of constitutional law is different from that of private law. The state is, according to him, nothing but a great landed domain; the king is the proprietor of this domain; the citizens are his servants or tenants; the taxes are rents; and war is but the private feud of the lord of the land. In this patrimonial state there naturally exist no rights belonging to the citizen. With Fr. Schlegel and Adam Müller this state romanticism inclined toward the church. In Steffens and Baader this same tendency was closely connected with the ideal mysticism of Schelling. This school closes its preliminary stage of development with the philosophy of law of Julius Stahl. This philosophy appeared with greater pretensions, and displayed more correct dialectics and subtler methods of demonstration. By leaning toward the historical school, it somewhat disguises its real purpose, but like Haller's restoration, it was really nothing but a return to the middle age, a relapse into the theological doctrine of the state taught by Pufendorf and Thomasius; his doctrine of the state begins as orthodox theology. Socialism forms an extreme contrast to this German romanticism of the state. At a much earlier period it had been acclimatized in France; but it grew most luxuriantly during the period of the restoration.-Even before the time of the encyclopædists, Morelli had called private property the source of all evil. According to him, the earth, given undivided to man, should remain undivided. Labor should be distributed among men according to their strength and capacity, and the product of that labor according to the wants of each, the surplus sold, and what was obtained for it divided equally among all.

But to maintain this state of things, legislation was, as a matter of course, needed; a legislation which, as in the case of Lycurgus, Plato and Fichte, would destroy all liberty. The right to labor was then recognized by the views which at that time prevailed, and ruled in all France, the views of the physiocrates, Mirabeau, Quesnay, Gournay, and even of the moderate Turgot. During and after the revolution, these ideas reappeared, with stormy energy, in Babeuf, Darthé, Marechal, Buonarotti, Saint Simon, Bazard, Fourier, Cabet, and Proudhon. In Le Maistre and Lammenais they were associated with the ecclesiastical, religious romanticism of the state. The former regarded the papacy as the highest international tribunal, while the latter, with a generous but very unstatesmanlike enthusiasm, dreamt of the re-establishment of the state on the basis of the early

| Christian community. We may also mention briefly other chief tendencies of the doctrines of the state in France, which yet are not originally French. The old liberals and old constitutionalists (Constant, Guizot, etc.,) as Montesquieu had once done, inclined toward the English constitution. Others yet sought to introduce and naturalize in France the methods and results of German philosophy, particularly of the great idealistic systems (as Cousin), partly in order to combat materialism, which, together with the eager pursuit of the natural sciences, seems to pre ponderate in modern French culture. We are not as yet able to pass judgment, from an historical point of view, on the multitudinous tendencies of the German philosophy of law since Hegel's time, tendencies which are still in full course of growth, and greatly at variance among themselves. Nevertheless, any philosophy of law that wishes to raise itself to the actual level of the science of law, can not henceforth afford to ignore the methods or the fundamental principles of the historical school referred to above. 3. Chief Features of the System. The main result of the above-mentioned development, as it is represented in the new historical school of legal science on the continent of Europe, and of phiosophy, relates, in the first place, to the methods, and then to a few of the chief features, of the matter of the philosophy of law. As in all the departments of philosophy, so also in this, it has become evident that " 'pure speculation," which pretended to construct phenomena a priori, without the aid of historical experience, never existed. The task of the philosophy of law is not to evolve the phenomena of the idea of law, as it were, prophetically out of that philosophy; but, by the aid of the inseparable forms of synthetic and analytic thought, to investigate the principles of law, after a careful historical and experimental study of the matter of law itself. A correct knowledge of law, especially of the history of the law of different nations and the comparative history of law, must henceforth be the basis of all philosophy of law; but that knowledge certainly will not supplant the law, as is supposed by the one-sided adherents of positivism and of the historical school. We find the realization of the idea of law in all its multitudinous forms of manifestation, by way of experience, in history. The first task of the philosophy of law is to investigate the cause of this phenomenon, and to ask: What is properly the fundamental idea that distinguishes this from other kindred phenomena? and how is it connected with these latter phenomena? We must further inquire: Since, whereever men live in society, at least some traces of a juridical organization are to be found; since law, no less so than language, religion, morals or art, seems to be a necessary attribute of human nature: wherein lies the necessity of the idea of justice for mankind? - Let us start with an approximative description of law, which does not pretend to be a definition. We may describe

law provisionally as the sum total of general regulations, under which particular cases may be subsumed with a certain degree of necessity. This at once reminds us of the fundamental quality of all human thought in itself. All our thinking, as it moves within the logical forms of judgment, notion and deduction, and in de- | duction in the form of major premise, minor premise and conclusion, is really but the subsumption of particulars under the head of a higher generality. Human speech, with which our thinking is indissolubly connected, and which is the essential form of our thinking, has its essence in the construction of unities from multitudinous phenomena of the same kind. All speaking and thinking is, accordingly, a seeking for generalities, for unity instead of multiplicity. The deduction, the syllogism, is, even more manifestly than the judgment, a subsuming of a particular under a general. And all our research, within the domain of mind and of nature, is nothing but a seeking for unity, generality, necessity, in place of the apparent multiplicity, particularity or accidentality of the phenomena. In the domain of nature we are not satisfied with the sight of the innumerable particular phenomena presented by falling bodies; we seek for unity, generality, necessity, in all these instances; that is, we seek for their "law," and speak of the law of gravity. In the department of mind, we are not satisfied with the impressions made by certain natural phenomena or human works upon our imagination. We try to discover why all these like phenomena produce the like impression that we call "beauty"; that is, we seek for the law of beauty. All human research is, therefore, a search for laws; that is, a search for a generality which has the character of unity, and under which particular phenomena are necessarily subsumed. When we have discovered a law in this sense, our thinking is at once satisfied, but not before. For the law of our thinking itself (the general, uniform, necessary essence of all our thoughts) consists precisely in seeking for laws, or for a necessary generality. Thus, the natural sciences seek for "laws of nature," and the mental sciences for "laws of mind." Man has divided the multitude of phenomena into two large hemispheres, according to the standard of their immediate, sensuous perceptibility, mind and nature. But the human mind not only wishes a law for each of these halves, it not only aspires after one law of nature appearing in all the laws of mind; but it also asks for unity above and within this duality. As the human mind embraces all that is conceivable, the world of nature and that of mind, in the idea of the universe, it rises to the idea of and the demand for an absolute law, a world-law of unity and necessity in the universe. In this manner, having recognized that law also is general regulation, under which particulars may be subsumed with necessity, we can understand the inner connection of the idea of law with the whole intellectual life of man, and its inner ideal necessity for man. To prove

this and bring it out into relief, is an important task of the philosophy of law. We have seen how, since the days of Plato, through the age of scholasticism, and of the teachers of the law of nature, down to our modern socialists, law and the state have almost always been conceived, as the result of external compulsion, as a mutual assurance of life and property against murderers and robbers. It can not be denied, that this external compulsion exists; but it does not exist alone. Men are led not only by external motives to law and the state; an ideal necessity impels them to regulate their social life, its manifold relations and phenomena, according to a uniform, general rule, necessarily demanded by reason; that is, according to a law. — The natural and intellectual constitution of man teaches us that he is intended for society, for living together with his equals. Natural instinct compels the two sexes of the human species to come together, not temporarily, like other creatures. The helplessness of man during infancy necessitates a permanent association of father and mother, and the human family is specifically different from that of other animals, just as human speech, which also presupposes a lasting community among men, is different from the inarticulate sounds of other animals. Man can not even exist, still less develop his native faculties, without utilizing in his service a number of natural objects, things and goods, to a far greater extent than all other animals. He needs not only food and shelter; clothing, weapons and tools of every kind are indispensable to his existence. But, since he lives and must live, in common, in marriage, in the family, the clan, the commune, etc., and as each man has an equal need of everything, conflicts concerning the outward relations of individuals to things or goods are unavoidable. There can be no doubt that it was the external necessity of preventing or quickly terminating conflicts of this kind, which constituted the real external compulsion that urged man to create law and the state; but it is a radical error to derive these institutions exclusively from that external compulsion. Human society demands a peace institution or peace order, but it is not satisfied with one that merely insures order. It requires a rational order of the peace. In this lies the ideal, intrinsic root of the law. Man does not wish the law, as external compulsion, as a purely arbitrary, compulsory ordinance or order. In this, as in every other domain man possesses the faculty, and feels the want, of seeking and finding the one general and uniform order which presides over the variety of phenomena, and which appears to him rationally necessary. The law of every people is the effort of a human community to find a rational peace order. Such laws embrace the cardinal principles, which, according to the ideas of each people, should regulate the acquisition of wealth, its exchange, the loss of goods or claims, the punishments for the unlawful violation of these same laws, and the proofs of such violation; or, in other

words, everything which conditions social life, | based on common interests. If this order of peace is violated, the offended person feels, that not only his individual interest has been violated, but also the general reason, under the protection of which his right is placed. And, since those who are entitled to the same rights regard the violation of the right of an individual as a violation of the order of peace or of the peace regulation, which, in the common conviction of all, is alone able to render life in society possible in a rational way, all feel, as does the offended individual himself, the necessity of restitution, and, according to circumstances, of satisfaction. As a result of these considerations we have the following definition: Law is the rational ordering of the peace of a human community in what concerns the external relations of the members thereof to one another and to things. —Law is the rational ordering of a human community. This characterizes it as a work of the human reason, and precludes its derivation from supernatural revelation. We say law is the ordering of a human community, but not of the human community; in other words, there is no law of nature, no abstract, model law, equally applicable to all times and to all peoples. The idea of law is certainly common to all nations and to all humanity. But, just as there is no abstract universal art, there is no abstract absolute law. The universal human idea of law appears only in the totality and in the succession of the laws of separate nations, in the same way that humanity is not a dead abstraction, above those communities of men called nations, but appears in the totality of nations. The difference of national characters appears in the difference of the laws, precisely as it does in the difference of the arts, languages and religions of the different nations. The law of every nation is the outcome of its natural and historical antecedents, and of those antecedents which accorded with its national character. It should be in harmony with the national character and the actual condition of the civilization of the country. It grows, at first, unconsciously, spontaneously, necessarily, as a custom. Originally, a nation no more made its laws than its language. — It has been objected to this conception of law of the historical school, that it leads to complete quietism. For it is said, if the law of a nation necessarily grows out of its aggregate character, individuals can do nothing but let it grow, and there can be no such thing as progress or learning. But the objection does not hold. So far as it applies at all, it is no objection; and so far as it is an objection, it does not apply. At all events, even in immediate stages of culture, the law, on the whole, is changed rather unconsciously than with a conscious intention. But if in a nation thought advances with culture and the complexity of its life, it naturally, also, affects the matter of the nation's law; it then consciously seeks to change and to improve that law, as it seeks change and improvement in every other sphere. As the law is always the mirror of the

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condition of a nation, if a nation far advanced in culture did not reflect upon its law, it would be as unnatural as if the "thing" men of the primitive forests of Germany had come to their judgments and decrees by means of the philosophy of law. This also disposes of the objection that, according to the historical conception of law, the learning of nations from each other, and their progress, are impossible. There have been dreamers, who, without any very profound knowledge of history or of human nature, have gratuitously supposed that the history of the world would constantly progress in a straight line; that, at some distant day, a universal law of humanity would supplant all the special laws of the different nations; and that this is to be the ultimate end of the world's history. But this will never happen. It is as impossible as the existence at any time in the future of an abstract humanity without national differences, or as that there should exist a universal language of humanity. That comfortless condition of absolute uniformity is excluded by differences in race, climate, soil, etc., which can never be entirely effaced by any degree of civilization. But our historical conception of law does not exclude the idea, that, in proportion as the civilization, interests and the common views of nations grow more like one another, their ideas of law will also grow more similar. But even then the similarity of the laws of the different nations would only be the mirror of their altered social conditions. This similarity of laws will probably be reached at a not very distant day, in those departments of law which by their nature belong more to the community of nations than to their separate life. Thus, there already exists an international law extending over the whole of Europe, and even beyond its boundaries; and it is not improbable that the most civilized nations will shortly agree in their views in regard to the laws relating to commerce, bills of exchange, copyright, the post, railways, etc. scarcely happen as to laws relating to the family, and to real property, to say nothing of the fact that among many nations (as mountain and seacoast peoples) many departments of law will either necessarily exist, or necessarily be wanting. And so nations may learn law as well as art from one another. In so far as wherever men live together there are certain legal relations (those created by contract, for instance), which must be judged by a logic inherent in these relations, a less developed nation, possessing a younger civilization, may very well adopt the truths which have been discovered by another nation with a more ancient civilization. The most important instance of this phenomenon is the acceptance of the Roman law in Germany. As the Germans had received the whole of Græco-Roman culture, it was very natural that they should also adopt the Roman law

Yet this can

that most important of all the elements of Roman culture; and thus far that acceptance has proved wholesome and instructive. But it was unnatural that that bit of ancient civilization

should be received by Germany in a way different from the rest, or absolutely; that is, not transferred into German views because capable of being assimilated with those views, but simply because and as it was written in the corpus juris. This unnatural process was only possible under the influence of the idea that the German empire was but a continuation of imperial Rome. This intrusion of Roman law met with obstinate popular resistance, and we are convinced that all the elements of Roman law which have not been assimilated will speedily again be rejected. — As our definition excludes the law of nature, and an illusory universal human law in the future, it also determines the warmly contested relation of law to the state. It is self-evident that the human community, the peace of which the law orders or regulates in a rational manner, according to the views of such community, is uniformly the state. The real, normal boundaries within which the developed life of the law regularly moves, is the circle of the state. But although the perfect life of the law is developed only in the state, attempts and primitive creations of the legal instinct, in laws relating to things, the family, contracts and punishments, are to be found, even before the state, in the clan, etc., out of which the state historically and gradually grows. The peoples of many states may, for definite particular purposes, permanently or temporarily enter into association, and conclude commercial treaties, alliances, international treaties of every kind, and reach a kind of ordering of the peace between several kingdoms. But it only shows how clearly the individual state is the normal circle of the community of law, that communities which are smaller or larger than the limits of an individual state, frequently lack the foremost requisite of the life of the law; a judge, and coercive power to enforce the sentence. The patriarchal head of the ante-state clan only too often substitutes his own peremptory decree for the sentence of the law; and the lack of a tribunal, as a constantly reliable executive power, constitutes the weak side of the law as soon as it extends its circle over several states. International law has hitherto in vain sought for a tribunal, which, in case of a violation of the law, might, in a reliable manner, enforce the fulfillment of treaties. — Since the law regulates only the external relations of men to each other, and not the internal relations of men to God or to their fellow-men, it follows that the law should not invade the domain of religion or morals; but it follows, also, that religion and morals should not encroach on the domain of the law and of the state. Law and the state are their own proper ends, just as religion and morals are. They are independent realizations of ideas which are as essential to human reason as religion and morals. For this reason, since they all are but different phenomena and tendencies of one sole power, there exists in principle no opposition or contradiction between them, but only complete harmony. Only in appearance can conflicts arise between them, as when either the state chooses to

dictate articles of faith, which is necessarily free, or when the church prescribes a definite form of faith as a condition precedent to the enjoyment of civil rights. In all these domains of the free inner life of man, in religion, science and art, the state has only a right to command or prohibit, when religion, science, etc., by some external manifestation, effect a disturbance of the peaceful order of the state; when, for instance, a sect refuses military service, or excites its members to the extermination of the adherents of creeds other than its own. Whenever these invisible forces produce visible phenomena, they at once enter the domain of law, and give the law occasion, in their own interest even, to create new forms and promulgate regulations. Thus, even the most spiritual things, as the thought of the artist or author, as soon as they enter the circle of outward interests, require legal regulation (copyright). The whole law as regards religion may be summed up thus: the state by no means assumes an indifferent attitude toward religion, but should allow complete religious freedom, in the sense that the state should not interfere with the existence of any religion not dangerous to morals or to the state; but, on the other hand, the state should not concede an influence on civil rights to any religious creed. In like manner, morals and law are neither hostile nor indifferent to each other, but they are independent each of the other. When the law draws within its domain certain duties, the performance of which should be dictated entirely by the heart, as, for instance, gratitude, as did the Athenian law of old, it becomes guilty of an unwarrantable trespass, which can be productive of no good either from a legal or moral point of view. When, on the other hand, the canon law and mediæval secular law punished purely moral transgressions with external and even political penalties, they were guilty of a similar offense. — Although in principle there does not exist any opposition. between morals and law, still, as history teaches, such an opposition may easily exist in appearance. When, mainly because of a diseased condition, a nation obstinately desires to retain and keep up forms and regulations perfectly suited to a past epoch, but which no longer answer to the needs of advanced progress, or to the new conditions of the nation; which are kept up, perhaps, because a fraction of the nation by so doing satisfies a selfish interest, although the national life requires a change of the old forms: in all such instances. there occurs a conflict between formal but antiquated law, and living, moral forces, which have not yet become law. Instances of this, well known to all, were the conflicts between the patricians and plebeians in Rome, of the noble families and the guilds in the cities of the middle ages, during the French revolution, etc. In the greater number of such cases the champions of formal law believe themselves to be morally justified in their opinions. Not only selfish interests, but bona fide convictions, are frequently brought face to face with each other. The obduracy of

the one and the heedless passion of the other reach a climax, when the strain becomes unendurable, and a violent change follows. In such a case the right of revolution, the jus revolutionis, in a juridical sense, has been appealed to. But this is not admissible; for no state can admit a juridical right to a violent breach of formal law, without self-abrogation. Here we must carefully distinguish between law and morals. No careful student of law and history will deny to a people the moral right of self-defense against the pressure of obsolete formal law which has become unendurable. The law should be a rational regulation or ordering of the peace. If it is an irrational ordering or regulation, if its pressure becomes unendurable, and if a redress in a legal way becomes impossible, it would be the height of folly to demand that the people should perish, in order to keep merely formal law in existence. On the contrary, in such case the people have authority morally to resort even to forcible self-defense, and the champions of obsolete law would here act immorally, or, at least, irrationally. But, in truth, every revolution is and must remain a breach of formal law, although morally we may regard it as entirely justified. A breach of the law under all circumstances is a catastrophe, threatening to the existence of the state, or temporarily even suspending its existence; for we must guard against the dangerous principle, that exclusively formal law is juridically law no longer. That principle conflicts with the essence of all law, and makes the existence of the state dependent on the whims of any discontented party. The moral justification of revolution also is a dangerous theory; but, at the same time, it is the incontestable teaching of philosophy and of history. That teaching presupposes that, objectively, there exists a case in which self-help is unavoidable, that the pressure of formal law has become unbearable, and that a peaceful settlement has become impossible. If these conditions be assumed inconsiderately to exist, then not with the correct theory, but with the incorrect application of the theory in practice, must the moral-political responsibility rest. We shall now briefly touch on one of the most important questions regarding the nature and character of the state. It was in keeping with the entire Kantian conception of morals, law and the state, that it considered the latter merely as a great institution for the enforcement of the law. The state, according to that conception, established courts, and, if necessary, carried out their judgments by force. This mere Rechtsstaat (constitutional state), by the political movements in Germany, which began under the influence of the critical philosophy, was used as a party shibboleth in a two-fold sense, in that country. The Rechtsstaat in Germany was the modern state, as it, in connection with the English and still more with the French revolution, contrasted with the mediaval feudal and patrimonial state. The modern state, with its ideas of citizenship, the separation of the powers, checks and balances, popular repre

sentation, political rights of freedom, security of the person and of property, freedom of conscience and of the press; with its independence of the courts of law-this modern state was emphatically called the Rechtsstaat, and formed a contrast to the negation or diminution of these ideas in the state. But, in the second place, as a contrast to Polizeistaat (police state) German radicalism required also a pure Rechtsstaat in another sense. It maintained that the undue tutelage and excessive supervision which the bureaucratic state introduced into all human concerns, was really no part of the task of the state; and Kant's authority was appealed to to prove that the state was but an institution in the nature of a court of justice. Hitherto, in fact, the interference of the state in the activity of society, of economy, trade, industry and culture, had been disastrous instead of profitable. And so all right of interference of the state in these several departments was denied. - It need not be said that the philosophy of law looks upon the modern state as a Rechtsstaat only in the first of these senses, and as opposed to the feudal state. In the second sense of the term, however, the philosophy of law can not sanction the mere Rechtsstaat. It assigns to the state other tasks besides dealing out justice in civil and criminal cases. The abuses of the administration should not lead to the rejection of all administration. The task of the state is to realize the idea of legal right, the idea of law; but law is the regulation or ordering of the peace in all that concerns all the external relations of men to each other, and to things. But this ordering of the peace is in no manner confined to the field of civil and criminal law, or the law relating to private and public rights. Wherever men enter into external relations to each other, and to things, a rational ordering or regulation is needed, which must aim not only at the preservation of the actual state of things, but progress and constant improvement. An ordering which aims only at preserving and protecting, and not at developing and improving, can not be called a rational ordering. Law is an idea essential to the human mind. It can not be supplanted by another any more than religion can be by art. That idea necessarily requires an external manifestation and a power in which to embody itself. That power is the state. LITERATURE. The old founders and teachers of the law of nature contain comparisons of older views and of contemporaneous polemical writings; in other words, they afford us the first materials for a history of the philosophy of law. Thus, we have the Prolegomena of Hugo Grotius, and the Specimen Controversiarum of Pufendorf. At the close of the seventeenth century we meet with special works on the history of the law of nature, historiæ juris naturæ, by Buddeus, 1695; Ludovici, 1701, 1714; Thomasius, 1719. We may mention: Schmauss, Neues System des Rechts der Natur, Göttingen, 1754; Ompteda, Literatur des natürlichen und positiven Völkerrechts, 1785; Henrici, Ideen zur wissenschaftlichen Begründung der