4 Roscoe Pound 



Kohler, 1 professing to follow Hegel, developed and limited these 

 ideas, so as to set off the philosophy of law from history and 

 anthropology on the one hand and from analysis of matured 

 systems of law on the other, and yet give it an intimate relation 

 to each. According to him, its province is philosophical study 

 of the evolutionary processes by which law is formed. Thus, in 

 his view, historical and philosophical jurisprudence are merged 

 in a sociological jurisprudence, and lose their identity. 



In order to perceive the place which this formative school occu- 

 pies in the history of jurisprudence, and the work which lies im- 

 mediately before it, we must understand the history of the con- 

 ception of law and of the schools which have developed and 

 debated it. And, since the definition of law was long the battle- 

 ground of jurisprudence, there is no method by which this his- 

 tory may be set forth more concisely and strikingly than by 

 examining the formulas by which jurists have attempted to ex- 

 press their conceptions and set forth their conclusions. 



A developed body of law is made up of two chief elements : 

 The enacted or imperative element, which is the modern element 

 and is tending to become predominant, and the traditional or 

 habitual element, — the older or historical element upon which 

 juristic speculation proceeds by interpretation and analogy. Cor- 

 responding to these two elements in the law, two distinct words, 

 originally expressing two distinct ideas, are to be found in most 

 languages spoken by peoples among whom law has reached any 

 great development. The one set of words (ins, Recht, droit, 

 diritto) has particular reference to the idea of right and justice, 

 but is used to mean law in general. It is appropriate to periods 

 in which law is formative or is expanding and developing through 

 juridical speculation or some other non-imperative agency. The 

 other set of words (lex, Gesetz, loi, legge) refers primarily to 

 that which is enacted or set authoritatively, but tends to mean 

 law as a whole. It is appropriate to periods of enacted law, and 

 to periods in which the growing-point is in legislation. As now 

 one and now the other of the elements of which law is made up 



4 Rechtsphilosophie und Universalrechtsgeschichte, in Holtzendorff, Ency- 

 klopadie der Rechtswissenschaft (6 ed.), 9 (1902). 



252 



