A New School of Jurists 13 



vide for the employment of the force of society to restrain those 

 who infringe the liberty of others." 1 But after a time men be- 

 came more doubtful of the efficacy of equality as a panacea, and 

 the purely judicial idea of justice began to drop out of the for- 

 mulas of metaphysical jurists. This appears noticeably in the 

 writings of Krause and his school, 2 but may be seen also in re- 

 cent formulas in which the imperative element is beginning to 

 reappear. 3 



It will be noted that the modern formulas which have been 

 cited are drawn from the philosophical standpoint. This is due 

 to the influence of the historical school founded by Savigny. 

 Regarding law as something organic, brought forth by inherent 

 necessity and developed by natural forces, a product of the his- 

 tory of a people, he opposed codification and was skeptical as to 

 the efficacy of legislation. Hence the imperative element plays 

 no part in the conception of his school, and during the period 

 of its predominance the best definitions are metaphysical. More 

 recently the shifting of the growing point of German law to 

 legislation has made itself felt in jurisprudence in a renewed 

 insistence upon the imperative element. Ihering was the pioneer 

 in this movement. He made the needed corrections in the theory 

 based upon the imperative element and brought together the 

 philosophical and the analytical conceptions, as Savigny had 

 reconciled the philosophical with the historical. 4 After his dis- 

 cussion of the subject, the imperative element ceased to be kept 

 in the background in German treatises. 5 



1 Introduction a Vklnde du droit , 2. 



2 "The organic whole of the external conditions of life measured by rea- 

 son." Krause, Abriss des Systemes der Philosophic des Rechtes, 209 (1828). 



3 E.g. , "An aggregate of rules which determine the mutual relations of men 

 living in a community," Arndts, Jurist ische Encyklopadie \ sec. 1 (1850); 

 "The sum of the conditions of social co-existence with regard to the activity 

 of the community and of individuals," Pulszky, Theory of Law and Civil 

 Society, 312 (1888); "The sum of the rules which fix the relations of men 

 living in society, or at least of the rules which are sanctioned by the society, 

 imposed upon the individual by a social constraint," Brissaud, Manuel 

 d'histoire du droit Francais, 3 (1898). 



4 He defines law as: "The sum of the rules of constraint which obtain in 

 a state. ' ' Der Zweck im Recht, I, 320 ( 1877) . 



6 See Merkel, furistische En cvklopa lie, sec. 19; Gareis, Rechisencyklopadie, 

 sec. 5; Holtzendorff, Encyklopadie der Recht swissenschaft (5ed.), 5, 78; Sohm, 

 Institutes of Roman Law (Tr. by l,edlie), 2 ed., 163. 



261 



