Page:American Journal of Sociology Volume 3.djvu/137

 NOTES AND ABSTRACTS 123

law, but they have completely failed in the domain of public law. In vain has it been attempted to widen the basis, to substitute human nature for the individual reason. It has only resulted in the theory of the state of nature and of the social contract, con- structed a priori, fanciful and contradicted by the facts.

The place assigned to public law in relation to civil law is what characterizes the two points of departure. If the first determines the second, the institutes of private law depend upon the social and political organization. In the opposite case the con- trary would be true.

The general theory of law still seeks its premises. It will find them in sociology more synthetic and more systematic than it is at present.

One of its branches, which concerns us more particularly, since it constitutes the object of the present study, having given rise to many misunderstandings on the sub- ject of its classification, deserves special examination. \Ve speak of the general theory of the state. Strictly it does not constitute a branch of the science of law, and its frequent confusion with public law merits removal. Thus even Bluntschli considers his work, entitled Allgemeine Staatstehre, as a general treatise on the state in its entirety, and in the double point of view of law and of politics, without distinguishing the two aspects of the conception. G. Waitz applies the term politics to the science of the state. \Ve shall have occasion again to return to this point, and to the stricter delimitation of these three domains. Lorenz Stein is more precise :

" There is no system of public law in itself. It exists rather as that which we intend by it ; it is the system of the organic life of the state itself. Public law con- stitutes the juridical expression of this system. Public law is the order, conceived and determined as right, of the organs and of their public activity, so far as these latter form the unity of the state."

We thus have on one side a particular system of organic social life, unified in the state, a system which constitutes the object of its general theory, on the other the jurid- ical expression of this life, the object of public law. But what do we mean by the "juridical expression " of any social organization, in the double point of view of soci- ology and of the philosophy of law, which we claim to be the same ? It is its psychic life or, more exactly, its intellectual life. Public law is nothing but a particular sphere of the social thought, of the intellectual functions of the political organization, a sphere, the physical antecedents of which constitute the functional life of the state.

It is important for us here to determine the relation between the general theory of the state and public law. In our opinion it is the same as between the study of physico-organic facts and that of psychic facts. The physical and the psychic can be brought back to a superior phenomenal unity only in the light of a general philosophy, and ought to be considered in their reciprocal relations as irreducible one to the other. The case is the same with the two sciences mentioned, the general theory of the state and public law. Their domain and their nature are different and distinct, and all con- fusion, all mutual encroachment would be absolutely contrary to the philosophical spirit.

Sociology classifies and explains fact> by discovering their general laws ; the par- ticular social sciences set them forth by const i tut in vj Dimply branches of the former. In this sense the general theory of the state is only one of the great chapters i ology. This does not hinder, from the point <>[ view of the complete comprehension phenomena, sociology from U-inu intimately connected with the theory of law, the philosophy of which ought to constitute another great chapter of this same synthc- si/inij science. Thus the place reserved for the Minly <>f the state in the totality of al instruction is plainly justified. Perhaps with time this particular branch will be supplanted by a general theory of social phenomena, hy .sociology. The progress realized in our time by this science shows us that in the near future it will be consid- ered as a necessary introduction to the study of law (Fernand Fame, " La Sodotogte dans les facultds de  -ut generaU de KM.

These : /'/.(, if fomnte Organisation Cctrcitive de la Societl Folitique, Paris, 1896, Introduction.