A Nczv School of Jurists 17 



We may hardly say that its rules for the government of the rela- 

 tions of states with each other are eu forced. 



Thus it appears that the growth of legislation as the chief 

 agency in law-making has emphasized the imperative element in 

 all recent formulas. In England, as the historical school came 

 last, jurists have been tempering ultra-imperative analytical for- 

 mulas to bring them into accord with the results of historical 

 research. In Germany, where the historical school came earlier 

 and waged its war with philosophical rather than with analytical 

 antagonists, metaphysical formulas have had to be made over to 

 accord with the every-day experience of those who live under 

 the jurisdiction of legislatures. Since Hobbes, English jurists 

 have always given the imperative element great prominence, and 

 continental jurists, almost without exception, are coming to in- 

 sist upon it more and more. Even writers on ethics have been 

 influenced by this modern predominance of enacted law. 1 In 

 Italy alone the theory of natural law and its concomitant methods 

 still flourish despite a code. 2 But, as we have seen, in the his- 

 tory of jurisprudence periods of legislation and codification, in 

 which the imperative theory of law has been predominant, have 

 always been periods of stagnation. The law has lived and grown 

 through juristic activity under the influence of ideas of natural 

 right and justice or of reasonableness, not force, as the ultimate 

 source of authority. Hence, if there were no counter movement 

 visible, we might well regard the well-marked swing of the pen- 

 dulum toward the imperative side as an ill omen. 3 It is precisely 

 here that the new Sociological School has its opportunity. Re- 

 alizing that a final answer to the question, "What is law?" is 

 impossible, since the thing to be defined is living and growing, 

 and therefore subject to change, the most conspicuous represen- 

 tative of the new school abandons that question and goes behind 



1 ' ' We must define Laws to be rules of conduct laid down by a Rightful 

 Authority, commanding within the limits of its authority." Sidgwick, 

 Methods of Ethics (6 ed.), 296. 



2 Lioy, Philosophy of Right (Hastie's Tr. ), II, 379-392. But a decadence 

 has been remarked. Carle, Vita del diritto, (2 ed. ), sec. 204 (1890). 



3 A protest has appeared in Austria already. Ehrlich, Freie Rechtsfindung 

 Und freie Rechtswissenschaft (1903). 



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