Investigations into the Method of the Social Sciences

The “Organic” Origin of Law and the Exact Understanding Thereof

Law, to the extent that it is presented as the result of positive legislation, is a social phenomenon, the explanation of which, as such and not in any particular orientation, leads to special difficulties. Law as the intended result of the will of an organized national community or of its rulers is a phenomenon which does not challenge the sagacity of the scholar unduly either in respect to its general nature or its origin. But the case is different with law wherever it appears not as the result of positive legislation (of the intended common will), but as the result of an “organic process.” For here, as above in the case of money, we are met with a social structure which in the most outstanding sense benefits the common welfare. Indeed, it really conditions it and yet does not appear as the result of a will of society directed toward this. An unintended product of social development which conditions and advances the welfare of society, and this perhaps to a higher degree than any social institution which is the work of human intention and calculation—the explanation of this remarkable phenomenon is the difficult problem which social science has to solve.

There is scarcely need to remark that the problem under discussion here cannot really be solved with the mere allusion to the organic origin, the “primeval nature,” the “originality” of law, etc.1 These attempts at explanation are mere figures, analogies between the genesis of natural organisms and that of law. Moreover, they are analogies which, as already set forth in another place,2 are thoroughly superficial. If the theory of the “organic origin” of law is to be more than an empty phrase, if the above problem is really to be solved, if we are actually to become clearly aware of the “organic origin” of law as opposed to its social-pragmatic genesis, then, on the contrary, it is necessary for us to examine its nature. It is necessary to examine the course of the process by which law appears without positive legislation, that process which one can always call “organic.”

The examination of how law actually developed originally in individual concrete cases, and the compilation of parallelisms of this historical development in various nations, would undoubtedly be a very useful and reliable methodological procedure for establishing the origin of law and its various possible forms. Yet it is just as unquestionable that this goal cannot be reached in the way just described. Law came into being in periods of human development which are far before those of documented history. What the historians can report about this process is based therefore only on inferences, not on attested empirical knowledge. Even the most careful utilization of history could not offer us a sufficient empirical basis for the solution of a problem in which laws of prehistorical development come into question. Certainly theoretical research will have to utilize history and ethnology most carefully in this undertaking. However, the attempt to solve the problem under discussion here exclusively in a historical-empirical way would be scarcely less permissible than if a natural scientist wanted to find out the first origin of natural organisms only by way of historical-empirical investigation.

The mere allusion to the “organic origin” of law, to its “primeval nature” and to similar analogies, is completely worthless. The striving for the specifically historical solution of the above problem is hopeless.

There can be only one way to reach the theoretical understanding of that “organic” process to which law owes its first origin. That is to examine what tendencies of general human nature and what external conditions are apt to lead to the phenomenon common to all nations which we call law. We must examine how law was able to arise from these general tendencies and conditions and according to the measure of their difference to come to understand its particular empirical forms.

The knowledge thus obtained is not historical in the empirical-realistic sense of this word. However, it is knowledge which, in contrast to the phrases “originality,” “primeval nature,” “organic origin” of law, etc., indicates at any rate a significant advance in the theoretical understanding of that process by which law came into being in its most original form. Indeed it has the advantage of offering us not only the superficial picture of the development under discussion, but also of revealing the motivating forces which led to the genesis of law with the growing insight of man into his interests.

There is scarcely need to remark that law usually comes into being and develops in an advanced community by way of legislation, or by way of an express agreement of the members of society directed toward establishing it, that is, predominantly in a pragmatic manner. Accordingly, it must also be interpreted predominantly in a pragmatic manner, through the intentions of the lawgivers and the conditions determining these. It was otherwise at the first beginnings of civilization, in epochs when the intercourse of people inhabiting a definite territory was slight, when their integration was not strong, when the awareness of integration was, furthermore, imperfect. In such times therefore we cannot yet properly speak of law as the expression of the organized total will of a nation. Here, at any rate, the genesis of law is not pragmatic in the above meaning of the word, and the question of what it actually is becomes inevitable.

The same external situation in which family heads of a territory find themselves under the most primitive conditions plus the insecurity, common to all, of the products of their individual efforts, cause the oppression of the individual to be felt most keenly by all others, too. It is human nature to feel the continued threat of evils almost more acutely than the threatened evils themselves. Each individual, even if not directly harmed, feels threatened most seriously in his interests by acts of violence, especially the weak individual, who is always in the majority compared to the strong one.

Under such circumstances are formed convictions of the necessity of certain limits to despotism, which are to be discussed below. Probably this occurs initially only in the minds of the wisest in the nation, namely, of those who can recognize their permanent interest beyond the shortsighted interest of the moment. But with increasing insight it gradually occurs in the minds of all those who find an advantage in the limitation of individual despotism. Among these are even the strong individuals, whose interest requires the conservation of what their power has achieved.

The conviction of the necessity of such limits of despotism was not, therefore, originally realized in the nation thought of as an organized unit. Still much less was it realized as the result of the reflection of an individual, or even of a national council, aimed at the welfare of all. It arose, rather, in the minds of individual members of the population with the increasing awareness of their interest, the individuals’ interest. What benefits all, or at least the far greater majority, gradually is realized by all.

The form in which the population becomes aware of convictions of the above type is, according to the nature of the matter, that of rules for action, but first and directly it is not at all of necessity a form that is agreed upon among all the people of the nation. Only the contents of the rules, and not their form, will show agreement at first, until gradually chance or talent brings forward an especially fortunate form of those rules which especially suits the perceptive faculty of less civilized people. This form is then fixed in the minds of the population without contract or particular agreement. Such principles are characteristic of all nations, even the most barbaric.

With this, with the genesis of certain rules for the action of the people of the nation, of whose suitability in respect to their welfare the members of the population have become aware, the concept of law is, however, not yet completed. For this to be the case another factor must be added which is already given implicitly, to be sure, with the situation we described above.

Everybody in the beginnings of society is directly aware of the significance of the rules for his own well being. Every individual recognizes that he is benefited in his interests by their observation on the part of the members of society and that he is threatened in his interests by their violation.

The protection of what everyone recognizes as his interest becomes the interest of every individual. There thus develops in the population the awareness that adherence to rules in the concrete case is not at the discretion of the individual, but must be assured. With this the contrast ! between law and morals is established. But at the same time the concept of I national law in its original form is completed. It is the essence of the rules which are supported by national conviction and limit the individual arbitrariness of the people of the nation, the adherence to which is not left to the free discretion of individuals according to the will of the population.

That law is actually enforced in all cases, that what has been violated is actually expiated, or can be, that in particular a coercive power meant for this is actually present and functions duly—all this is on the contrary foreign to the concept of law in its most original form.3 But without doubt the genesis of a coercive power is a natural consequence of the conditions described above.

In those beginnings of civilization in which national law arises every member of the nation is not only convinced of the purposefulness of the rules of law and of the necessity of not leaving the adherence to them to the free discretion of the individual; he also feels the impulse to defend the threatened law, or to have the violated law expiated, since no power outside the power of the individual is competent to protect it. Law in its most original form arises and lives only in the mind of the population, but its realization is also exclusively the affair of the latter. It is actually expressed in “self-help” and in “national justice.” It is affirmed in tradition and in the custom of even-handed dealing. The less developed a nation is, the greater the force of the conditions portrayed here. In all nations whose legal life is still in its childhood, self-help and national justice play a prominent part. Even in periods of higher development we can still recognize in law the traces of these most original forms of its protection.

In the minds of the population the idea of a closer solidarity, the awareness of national community, and an organization bringing together all people of the nation into a higher unity develop only gradually. They develop through like external destinies, through the community of history, of kinship, of language, of religious feelings, and to no very small extent also by means of community of convictions pertaining to law (and of rules of law) and of the action directed toward realizing them.

Only from then on does law, which up to then was alive only in the minds of individuals and found its guarantees in the energy of the individuals (of those participating and those of the same conviction), become the expression of the uniformly organized national will. Only then does its realization become an affair of the population of a territory or of a state, a population which has become an organized unit.

National law in its most original form is thus, to be sure, not the result of a contract or of reflection aiming at the assurance of the common welfare. Nor is it, indeed, given with the nation, as the historical school asserts. Rather, it is older than the appearance of the latter. Indeed, it is one of the strongest ties by which the population of a territory becomes a nation and achieves state organization.

When the population becomes aware of the idea of community, when it gradually begins to feel that it is one, then the sphere of its interests expands and with it that of its rules of law. They cease to be the mere result of the efforts of the people of the nation directed toward protection of the individual interest. Also the common interest, or what is considered that, enters the mental sphere of the population and with it the awareness of the necessity for protecting this interest against individual despotism. To law which results from the effort of individuals to assure their individual achievements is added law which is the result of efforts directed toward the protection of the community. But this is not necessarily the fruit of common counsel, either, of an agreement, of a contract, or of positive legislation. Its origin is analogous to that of national law in general.

In the first beginnings of civilization man may have become aware of the idea of law as if a new light were dawning. Later generations, however, which did not experience the original formation of law per se, but had inherited it in its basic features from their forefathers, may have become aware of it as an inspiration of a higher divine wisdom, for all nations have connected the idea of law with the loftiest presentiments in very early periods of their development. The rules of law have become the subject of national belief, of a sanctified tradition handed down from generation to generation, and they have become an important subject of religious education. What each individual experienced in himself and created from himself at the beginnings of civilization had thus in the opinion of the nation gradually become something objective, something divine standing above human wisdom and human interest. And the gradually awakening insight into the common usefulness of law has affirmed this pious error.

The above process was certainly completed only gradually, almost imperceptibly, because of its nature. Also, in itself it scarcely influenced the contents of law. However, the nature of the latter has by no means remained uninfluenced by it.

In place of the living insight into the connection between the interests of the people of the nation and law as the result of the appreciation of those interests by the people there gradually developed law as the object of belief in authority—the belief in the sanctity and higher origin of law. At least, in terms of its core idea and in its basic determination, it no longer appears before the minds of the population as something they experienced, as the expression of their insight and their conviction, as something subjective. Rather, it appears as something independent, offered to them from outside, something objective.

The special contents that law assumes in a concrete case, before legislation begins to shape them, depend on the particular conditions of the population from whose mind law originated. Directed in its original form toward assuring the most important and most general individual interests of the people of the nation, it broadens and deepens gradually with increasing intercourse and the growing insight of individuals into their interests. It is affirmed by custom and is shaken and finally altered by the change of those conditions to which it owes its origin. Certain conditions resulting from general human nature and thus appearing everywhere produce similar institutions of law everywhere by their nature, while tribal differences and variety of external conditions and mental spheres result in differences in law. What is considered law and justice in one nation may in part not appear so to another. With the change of conditions the same phenomenon may appear in the same nation in different eras of its development. Everywhere law is set in the current of time and of human conditions and only in respect to these does it have its special existence.4

However, law can also come into being, and even under the most original conditions, in another way essentially different from the above: by authority. The man in power or intellectually superior can set certain limits to the discretion of the weak men subject to him or of those mentally inferior. The victor can set certain limits for the vanquished. He can impose on them certain rules for their action to which they have to submit, without considering their free conviction: from fear. These rules, however similar they appear on the surface to those of national law, are both by origin and by the guarantees of their realization essentially different from the law which grows out of the convictions of the population and the realization of which was also originally an affair of the nation. Indeed, they can be in direct contrast to national law; they are really statute, not law. But the strong man has an interest in calling them ‘“law,” in cloaking them with the sanctity of law, in connecting them with religious traditions, in elevating them so that they become the objects of religious and ethical education. This is the case until the habit of obedience and the sense of subjection developed by them recognize in them something analogous to law and until this habit and sense scarcely distinguish any longer those rules limiting the discretion of the individual which are produced by the convictions of the nation from those which power prescribes for the weak. If the latter have existed for generations and merged with national law in eras when written history does not exist, then even science can scarcely recognize them any more. The amalgamation of national law and the statutes of power advances, however, so much the more easily, the more national law itself has become the object of a belief in authority and is no longer supported by convictions based on the insight into individuals’ interests, from which it originally developed. All institutions which sanctify law, even the philosophical systems which “objectify” it or describe it as something “above human wisdom,” always benefit power.5

Law arose originally from the conviction of the members of the nation or by force. As soon as the conditions of a nation and therewith its law assumed such a complicated character with the advance of civilization that knowledge of the law could no longer be the affair of all people, the necessity for the division of labor led to a special class of people here, too. This class, the class of jurists, is concerned with the study, application, and development of law. On the other hand, the advance of state organization causes law to be recognized more and more as the expression of the uniformly organized common will and the protection of it as a matter for the state authority. In individual spheres of existence, or where state law leaves a gap, law may still develop in its original form and there may arise a common law based on the persuasions of certain elements of a population and even a peculiar legal persuasion antagonistic to statute law. On the whole, however, development of law, administration of law, and the realization of law in the course of cultural development become in general the affair of state authority and the jurist class. They become the condition of any universal knowledge of law and its practice and of any higher technical perfection thereof. They become the tool of which the practice of law makes use.

The process indicated here was also, as is obvious, completed only gradually and by no means as a matter of necessity, in contrast to the original national law. State authority did not usually do away with common law, but recognized and perfected it technically. Also the jurist class with its professional skill only gradually began its function of developing and administering law. But with this was given the possibility of a contrast between the law convictions of the members of the nation, of the jurist class and statutes.

In this, national law by no means proved inferior in all details when examined more closely. In detail it could show gaps, contradictions, inexact features, and technical flaws of other kinds. On the whole it could not always correspond to the momentary views of the rulers on the purposes of the state and its law order. Above all, it could not follow the mobility of political and social conditions fast enough. All these weaknesses, as soon as a special class began to concern itself professionally with the study of law, could not help coming directly to their attention. This occurred to so much the greater degree the more the ability of the jurists to see such weaknesses had been sharpened by the study of the developed law of other nations. In respect to content, the national law organically developed from the most individual conditions of life without reflection on the common welfare could not always be equal to a test of its suitability for common usefulness.

Thus the jurist class, usually in the service of the state authorities, completed everywhere a thorough-going reform of national law, not, to be sure, without succumbing to individual errors arising from the very nature of the whole matter.

National law had developed from the needs and convictions, from the basic character of the population, and through centuries of constant practice had taken on form corresponding to concrete conditions. As the result of old, tested national wisdom it lived on in the hearts of the population, who clung to it instinctively. They clung to it even where they had long since lost insight into the connection between the rules of law and the particular conditions from which these came. There was a good part of wisdom in national law which the people now only felt and were no longer clearly aware of.

This important factor the learned jurist class has misunderstood for centuries, and, indeed, the more completely, the more they turned away from the study of their own national character and one-sidedly moved in the mental spheres of the developed law of other nations and of abstract law theories. They lacked not only understanding of the unintended wisdom in national law, but also feeling for it.

There were those who recognized in the state and state institutions and in society and social institutions only the result of the purposeful activity of the inhabitants of a territory or of their rulers. They naturally were inclined from the start to consider all social institutions of organic origin or influenced by organic powers, as far as they did not understand these in their significance for the preservation and development of society, as abuses and social evils. They were inclined to strive for a reform of these in the sense of a policy which not infrequently appeared the more utterly arbitrary the more defective the insight behind it was. The “intuitive wisdom” in organically developed social institutions (not completely unlike the “suitability” which in natural organisms strikes the admiring attention of the expert natural scientist, but is easily missed by the bungler!) was in general overlooked by the representatives of this orientation. The fruit of this in the field of practical politics was an immature criticism of existing social institutions, to which were joined no less immature reform efforts.

Theoretical one-sidedness and erroneous desire for innovation have thus spoiled the law of a nation often enough where those who applied the reformer’s hand thought they were acting for the common good. But how much worse it was when the rulers and the jurists joined hands to replace the common law which arose from the nation and for the nation with one which was to serve the rulers!

It was an undeniable merit of the historical school of jurists to have restrained those immature and precipitate reform efforts in the field of legislation and to have pointed out again the organic origin of common law and the unintended wisdom in it. This was a merit which is worthy to be joined to that which the same school gained for itself by comprehensive research in the field of legal history and by broadening the specifically historical understanding of our law.

What the above school can be blamed for, on the other hand, is a series of errors and omissions which we cannot avoid indicating here briefly.

The historical school of jurists has, to be sure, emphasized the “organic origin” of common law, its “primeval nature” and “originality,” its genesis in the national mind, etc. But it has stopped here, as if the problem of the origin of common law were in some way solved by the above partly figurative, partly meaningless phrases. It has neglected to make us understand theoretically the nature and the course of that process, the result of which is common law.

Also, only very little was gained by mere allusion to the “higher wisdom” of unintentionally created common law. In part, a new error was even brought into the sphere of scientific considerations. The meaning of the allusion can rationally be only that common law, in spite of its not turning out to be the result of a social will aimed consciously at the common good, benefits the latter nonetheless to a higher degree than a corresponding positive legislation could. This assertion is, however, erroneous in every conceivable respect. For common law has also proved harmful to the common good often enough, and on the contrary, legislation has just as often changed common law in a way benefiting the common good. The above theory contradicts experience.

If it nonetheless keeps recurring in the methodological writings of the historical school of jurists, as it obviously does, with all conceivable reservations, the cause for this lies in the vagueness which exists concerning the nature of the “organic process,” the result of which is designated common law. Natural organisms, to be sure, exhibit a quite incomparable suitability, one which justly arouses the admiration of the expert scholar. But what is proved by that for common law and its suitability in respect to benefiting human welfare? Common law can above all be designated only in a figurative sense as an “organic structure.” What is true of natural organisms cannot thus be simply applied to the law. This is so much less the case as common law is, indeed, not the intended result of the common will aimed at the common good but, as we have seen, an outcome of individual human efforts, and thus not in direct contrast to human wisdom.6

But even if the above image were strictly apt, if common law were actually a structure completely analogous to natural organisms, would it follow that legislation has to refrain from any interference in the development of this organism, or even any interference required by particular situations?

A statesman who would hesitate to change the law with regard to the common good just because it is really or supposedly of “organic origin” would be comparable to a farmer, a technologist, or a physician who would avoid any interference in the course of natural organic processes out of veneration for the high wisdom which is manifest in nature. And are there not even absolutely noxious organisms?

The theory of the “higher wisdom” of common law thus not only contradicts experience but is at the same time rooted in a vague feeling, in a misunderstanding. It is an exaggeration, carried to the point of distortion, of the true statement that positive legislation has upon occasion not comprehended the unintended wisdom in common law, and, in trying to change the latter in the sense of the common good, has not infrequently produced the opposite result.

If the historical school of jurists had not stopped with phrases such as organic nature and the higher wisdom of common law, if they had gone deeper to the core of the actual conditions under discussion here, they could not be in doubt for a moment about their attitude toward this problem. If the rules and institutions of common law not infrequently prove to be highly suitable in respect to the common good, it was the task of science to make us understand this advantage. That suitability of common law, which is the unintended result of an “organic process,” had to come to the notice of jurists and lawgivers to make the thus gained new insight useful for positive legislation. If individual eras have failed to recognize the peculiar worth of common law and changed the law by immature or hasty reforms, instead of bettering it, it was the duty of the historical school of jurists to avoid a similar procedure for the future—not by proclaiming the higher wisdom of common law, but by teaching the proper evaluation of the insight they had gained in legislation. The fruit of their view was not to be the avoidance in principle of positive law development, however well stipulated. It had to be the purification of the latter by new insight gained from the thoughtful consideration of common law. As the farmer, the technologist, and the physician investigate nature and the laws of its motion in order to shape things for their purposes on the basis of the thus gained insight, so, too, the historical school of jurists had to make us understand the previously uncomprehended advantages of common law. They had to do this to offer to the lawgiver new ways and means to practice his high profession through the thus expanded knowledge. But never, and this is the essential point in the matter under review, may science dispense with testing for their suitability those institutions which have come about “organically.” It must, when careful investigation so requires, change and better them according to the measure of scientific insight and the practical experience at hand. No era may renounce this “calling.”

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7 Just as little is the above problem solved by allusion to the origin of law in the national mind. For even if a national mind differing from the mind of human individuals were to be acknowledged as a real existence with consciousness and desires differing from those of individuals in social intercourse, the question would still have to be asked how the idea of law is actually formed in a mind so conceived and gains its special form in the concrete case. The problem under discussion here is only obscured, not solved, by the above fiction. Cf. Ahrens, Philosophie des Rechtes (1870), I, p. 175 ff.

8 See p. 133 ff.

9 It is an error that, since Thomasius, a long line of philosophers of law look for the difference between law and morals in the addition of a coercive power, or even in the actual enforceability of what is presented by the rule of law. For law obviously remains law even if it is not enforced (e.g., against the cleverer or stronger, or even as a result of injustice), or if the violated law cannot be expiated. Indeed, this is true even if a relevant coercive power is not present at all (as e.g., in many cases of international intercourse). Law differs from morals rather through the fact that the rule of law in the consciousness of the populace, or according to the intention of the lawgiver, is a rule compliance with which is not to be left to the free discretion of the individual. This, however, is by no means the case with the rules of morality. The actual existence of a compulsive power and the actual expiation of the violated law are, to be sure, natural and regularly occurring results of the situation described above, but they are by no means necessary presuppositions or attributes of law.

10 Schmoller (Ueber einige Grundfragen des Rechts und der Volkswirthschaft [1875], p. 25 ff.) justly attacks the opinion that the ethical ideas of marriage, of private property, etc., always remain the same, and he shows (p. 29 ff.) that the ethical element is not to be found in the constancy of an institution. Cf. also his “Gerechtigkeit in der Volkswirthschaft” (Jahrbuch für Gesetzgebung, Verwaltung und Volkswirthschaft [1881], p. 29 ff.).

11 Legal order is a condition of all relatively progressive intercourse; the latter in turn is a condition of all higher human welfare; the desire for welfare, however, is in general human nature. Thus law is not a chance affair, but, both in terms of its essential idea and its particular content, it is something implicitly given essentially by human nature and the particularity of conditions. With this, however, law is not already something real either in terms of idea or particular content. For it really to appear, those factors which determine it must be recognized and considered and law must be created by a mental process. If one does not want to assume that people became aware of law by way of external or inner revelation, in a word, if one wants to operate only with scientifically admissible means, then that mental process by which law, only postulated by human nature and the other pertinent conditions, became something real can in any case have taken place only in human minds. It is the task of science to give us clarity concerning this process, a task which is by no means solved by the phrases “originality,” “primeval nature,” or “organic origin.” By attacking the solution of the above problem relevantly, we have at the same time shown that law in its objective reality is not contained a priori in the human mind in general or in the national mind in particular, nor is it revealed by an intelligence external to the human race. Rather, as far as it is presented to us not as a product of power or of positive legislation, it is the result of reflective consideration and judgment of needy human nature and the conditions that environ the members of a nation. Law is thus not an end in itself. It is so definitely not this that it would disappear at once and become just as useless as burdensome a limitation of human freedom if those barriers to individual discretion which we call the legal order were to become superfluous in a certain state of society, or if law were to become detrimental to human welfare. Everyone would then recognize by himself that it is neither “external” nor “native to the human breast,” nor “divine,” but an institution sprung from human intelligence and serving human interests. What was misunderstood frequently enough before the appearance of the historical school of law in Germany is the fact that law is not always the result of an (intended) common will directed toward establishing it and toward the furthering of human well-being. Originally it was not this at all. This is a fact which, however, by no means excludes the genesis of law as the result of human intelligence.

12 Cf. p. 225 ff.

• 1Just as little is the above problem solved by allusion to the origin of law in the national mind. For even if a national mind differing from the mind of human individuals were to be acknowledged as a real existence with consciousness and desires differing from those of individuals in social intercourse, the question would still have to be asked how the idea of law is actually formed in a mind so conceived and gains its special form in the concrete case. The problem under discussion here is only obscured, not solved, by the above fiction. Cf. Ahrens, Philosophie des Rechtes (1870), I, p. 175 ff.
• 2See p. 133 ff.
• 3It is an error that, since Thomasius, a long line of philosophers of law look for the difference between law and morals in the addition of a coercive power, or even in the actual enforceability of what is presented by the rule of law. For law obviously remains law even if it is not enforced (e.g., against the cleverer or stronger, or even as a result of injustice), or if the violated law cannot be expiated. Indeed, this is true even if a relevant coercive power is not present at all (as e.g., in many cases of international intercourse). Law differs from morals rather through the fact that the rule of law in the consciousness of the populace, or according to the intention of the lawgiver, is a rule compliance with which is not to be left to the free discretion of the individual. This, however, is by no means the case with the rules of morality. The actual existence of a compulsive power and the actual expiation of the violated law are, to be sure, natural and regularly occurring results of the situation described above, but they are by no means necessary presuppositions or attributes of law.
• 4Schmoller (Ueber einige Grundfragen des Rechts und der Volkswirthschaft [1875], p. 25 ff.) justly attacks the opinion that the ethical ideas of marriage, of private property, etc., always remain the same, and he shows (p. 29 ff.) that the ethical element is not to be found in the constancy of an institution. Cf. also his “Gerechtigkeit in der Volkswirthschaft” (Jahrbuch für Gesetzgebung, Verwaltung und Volkswirthschaft [1881], p. 29 ff.).
• 5Legal order is a condition of all relatively progressive intercourse; the latter in turn is a condition of all higher human welfare; the desire for welfare, however, is in general human nature. Thus law is not a chance affair, but, both in terms of its essential idea and its particular content, it is something implicitly given essentially by human nature and the particularity of conditions. With this, however, law is not already something real either in terms of idea or particular content. For it really to appear, those factors which determine it must be recognized and considered and law must be created by a mental process. If one does not want to assume that people became aware of law by way of external or inner revelation, in a word, if one wants to operate only with scientifically admissible means, then that mental process by which law, only postulated by human nature and the other pertinent conditions, became something real can in any case have taken place only in human minds. It is the task of science to give us clarity concerning this process, a task which is by no means solved by the phrases “originality,” “primeval nature,” or “organic origin.” By attacking the solution of the above problem relevantly, we have at the same time shown that law in its objective reality is not contained a priori in the human mind in general or in the national mind in particular, nor is it revealed by an intelligence external to the human race. Rather, as far as it is presented to us not as a product of power or of positive legislation, it is the result of reflective consideration and judgment of needy human nature and the conditions that environ the members of a nation. Law is thus not an end in itself. It is so definitely not this that it would disappear at once and become just as useless as burdensome a limitation of human freedom if those barriers to individual discretion which we call the legal order were to become superfluous in a certain state of society, or if law were to become detrimental to human welfare. Everyone would then recognize by himself that it is neither “external” nor “native to the human breast,” nor “divine,” but an institution sprung from human intelligence and serving human interests. What was misunderstood frequently enough before the appearance of the historical school of law in Germany is the fact that law is not always the result of an (intended) common will directed toward establishing it and toward the furthering of human well-being. Originally it was not this at all. This is a fact which, however, by no means excludes the genesis of law as the result of human intelligence.
• 6Cf. p. 225 ff.
• 7There is scarcely need to remark that the problem under discussion here cannot really be solved with the mere allusion to the organic origin, the “primeval nature,” the “originality” of law, etc. These attempts at explanation are mere figures, analogies between the genesis of natural organisms and that of law. Moreover, they are analogies which, as already set forth in another place, are thoroughly superficial. If the theory of the “organic origin” of law is to be more than an empty phrase, if the above problem is really to be solved, if we are actually to become clearly aware of the “organic origin” of law as opposed to its social-pragmatic genesis, then, on the contrary, it is necessary for us to examine its nature. It is necessary to examine the course of the process by which law appears without positive legislation, that process which one can always call “organic.”
• 8There is scarcely need to remark that the problem under discussion here cannot really be solved with the mere allusion to the organic origin, the “primeval nature,” the “originality” of law, etc. These attempts at explanation are mere figures, analogies between the genesis of natural organisms and that of law. Moreover, they are analogies which, as already set forth in another place, are thoroughly superficial. If the theory of the “organic origin” of law is to be more than an empty phrase, if the above problem is really to be solved, if we are actually to become clearly aware of the “organic origin” of law as opposed to its social-pragmatic genesis, then, on the contrary, it is necessary for us to examine its nature. It is necessary to examine the course of the process by which law appears without positive legislation, that process which one can always call “organic.”
• 9That law is actually enforced in all cases, that what has been violated is actually expiated, or can be, that in particular a coercive power meant for this is actually present and functions duly—all this is on the contrary foreign to the concept of law in its most original form. But without doubt the genesis of a coercive power is a natural consequence of the conditions described above.
• 10The special contents that law assumes in a concrete case, before legislation begins to shape them, depend on the particular conditions of the population from whose mind law originated. Directed in its original form toward assuring the most important and most general individual interests of the people of the nation, it broadens and deepens gradually with increasing intercourse and the growing insight of individuals into their interests. It is affirmed by custom and is shaken and finally altered by the change of those conditions to which it owes its origin. Certain conditions resulting from general human nature and thus appearing everywhere produce similar institutions of law everywhere by their nature, while tribal differences and variety of external conditions and mental spheres result in differences in law. What is considered law and justice in one nation may in part not appear so to another. With the change of conditions the same phenomenon may appear in the same nation in different eras of its development. Everywhere law is set in the current of time and of human conditions and only in respect to these does it have its special existence.
• 11However, law can also come into being, and even under the most original conditions, in another way essentially different from the above: by authority. The man in power or intellectually superior can set certain limits to the discretion of the weak men subject to him or of those mentally inferior. The victor can set certain limits for the vanquished. He can impose on them certain rules for their action to which they have to submit, without considering their free conviction: from fear. These rules, however similar they appear on the surface to those of national law, are both by origin and by the guarantees of their realization essentially different from the law which grows out of the convictions of the population and the realization of which was also originally an affair of the nation. Indeed, they can be in direct contrast to national law; they are really statute, not law. But the strong man has an interest in calling them ‘“law,” in cloaking them with the sanctity of law, in connecting them with religious traditions, in elevating them so that they become the objects of religious and ethical education. This is the case until the habit of obedience and the sense of subjection developed by them recognize in them something analogous to law and until this habit and sense scarcely distinguish any longer those rules limiting the discretion of the individual which are produced by the convictions of the nation from those which power prescribes for the weak. If the latter have existed for generations and merged with national law in eras when written history does not exist, then even science can scarcely recognize them any more. The amalgamation of national law and the statutes of power advances, however, so much the more easily, the more national law itself has become the object of a belief in authority and is no longer supported by convictions based on the insight into individuals’ interests, from which it originally developed. All institutions which sanctify law, even the philosophical systems which “objectify” it or describe it as something “above human wisdom,” always benefit power.
• 12If it nonetheless keeps recurring in the methodological writings of the historical school of jurists, as it obviously does, with all conceivable reservations, the cause for this lies in the vagueness which exists concerning the nature of the “organic process,” the result of which is designated common law. Natural organisms, to be sure, exhibit a quite incomparable suitability, one which justly arouses the admiration of the expert scholar. But what is proved by that for common law and its suitability in respect to benefiting human welfare? Common law can above all be designated only in a figurative sense as an “organic structure.” What is true of natural organisms cannot thus be simply applied to the law. This is so much less the case as common law is, indeed, not the intended result of the common will aimed at the common good but, as we have seen, an outcome of individual human efforts, and thus not in direct contrast to human wisdom.