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The Green Bag

ing law with a fluid culture wandering in the maze of history with no goal save that of the empty abstraction of liberty, of human efficiency. Consequently he fails to perceive that a study of contem porary morality and other factors of civilization affords the materials for an inductive forecast of tomorrow's develop ments, in principle if not in practice; for the prodigious complexity of such a task would not justify the conclusion that human development is not gov erned by definite laws which it is the business of science to ascertain. He cor rectly views legal, like other institu tions, as an artificial force, but he fails to see that the law may be at once an artificial and a natural force; that the harnessing of this social agency, so to speak, can come only as the result of a dynamic pressure, that legislation, though a deliberate process in the legis lator's mind, is also the production of a social force. A ripened process of de liberation on the part of the legislator aspires under modern intellectual con ditions to a mastery of scientific method, and the formulation of that method is one of the tasks of modern legal philoso phy.23 IV. The Rationality of Culture. — It is one thing to find that Bcrolzheimer's philosophy really results in the doctrine of the fluidity of culture, and another to suppose that he is conscious of the attitude which must thus be described. He is not aware of the Heraclitcan posi tion he occupies. He does not see that by detaching culture from the field of natural law he leaves it entirely with'* Commenting on Wundt's social philosophy, Professor Barth of Leipsic says: "Die kausale Betrachtung [der Geschichte] erst macht die Soziologie oder Geschichtsphilosophie zu einer fruchtbaren Wisscnschaft. Sie ermoglicht dem Politiker aus erkannten Ursachen Mittel zu machen, um gewisse Zweckc herbeizufiihren." — "Wilhelm Wundt als Sozialphilosoph," Archiv fiir Rechtsund Wirtsch.-philosophic, v. 6, p. 133.

out stable foundations. His dualism 24 enables him to conceive of a culture which, though uncontrolled by natural forces, is nevertheless controlled by something belonging to its own inward nature. "Man is a being endowed with a divine spirit, a being whose knowing and thinking, though dependent upon his material organization, is not re stricted by it."25 This is but another way of saying that cultural forces are supernatural forces, partly at least. Berolzheimer is plainly in sympathy with the deeper interpretation to be placed upon Kohler's remark that man is not a mere placental mammal but has the capacity of acquiring the attri butes of godliness.26 He acknowledges that his philosophy is in a sense neoPlatonic.27 A supernatural element enters his philosophical system. For the moral chaos mistakenly connected with natural istic philosophy is substituted the order superimposed by a rational, transcen dental spirit. A rational solution of all practical problems is thus possible. Legal philosophy, equally with politics, must be directed toward the future of social conduct.28 Repudiation of social dynamics on one hand, and of Hegelian dialectics on the other, therefore does not lead Berolzheimer to a non-ethical descriptive empiricism but to an ethical valuation of the current situation. The doctrine of a culture not determined by empirical conditions is supplemented by the doctrine of the necessity of empirical knowledge to further the interests of culture. The principle of an undeter mined fluid culture is modified by an important qualification .— reason should determine the succeeding stages of cul ture. This want of perfect logical con» Paulsen notwithstanding; see p. 461. » P. xlvii (footnote). s0 Pp. xvii-xviii. "P. xlvii. - P. xlvi.