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JUSTINIAN IN COUNCIL
Photogravure from the Painting "by Jean Joseph Benjamin-Constant.
This famous painting was originally exhibited in the Paris Salon of 1888,
and was presented in 1890 by G. Mannheimer to the Metropolitan Museum of
Art in New York. Justinian, surnamed the Great, was the last Emperor of
Constantinople, who in the sixth century, by his dominion over the whole of
Italy, reunited in some measure the ancient Empire of the Caesars. The glory
of his reign is the famous digest of Roman law, known to fame as the Justinian
Code. The scene depicted in Benjamin-Constant's painting is a slave reading
before Justinian and his Cabinet some portion of this celebrated code.
ARTS AND SCIENCE
HOWARD J. ROGERS, A.M., LL.D.
DIRECTOR OF CONGRESSES
JURISPRUDENCE AND SOCIAL SCIENCE
Lectures on International Law, Private Law, Legislation,
Constitutional Law, The Rural Community,
The Urban Community, The Family,
The Industrial Group, and
LONDON NEW YORK
COPYRIGHT 1906 BY HOUGHTON, MIFFLIN & Co.
ALL RIGHTS RESERVED
COPYRIGHT 1908 BY UNIVERSITY ALLIANCE
JUSTINIAN IN COUNCIL ....... Frontispiece
Photogravure from the painting by JEAN JOSEPH BENJAMIN-CONSTANT
DR. JOHN W. BURGESS 457
Photogravure from a photograph
PORTRAITS OF SIGNOR ATTILIO BRUNIALTI AND COMMENDATO G. B. ZEGGIO 550
Photogravure from a photograph
THE MISSIONARY'S STORY 814
Photogravure from the painting by J. G. VIBERT
TABLE OF CONTENTS
The Fundamental Ideas and Conceptions of Jurisprudence . . 459
BY PRESIDENT CHARLES WILLIS NEEDHAM, LL.D.
Jurisprudence: Its Development during the Past Century . . 470
BY PROF. JOSEPH HENRY BEALE, JR., LL.D.
The Legal Nature of International Law ...... 485
BY JAMES BROWN SCOTT, A.M., J.U.D.
The Present and Future State of International Law . . . 494
BY PROF. HENRI LA FONTAINE, LL.D.
Some Problems of International Law ...... 509
BY CHARLES NOBLE GREGORY, LL.D.
The Juridical Nature of the Relations between Austria and Hungary . 529
BY COUNT ALBERT APPONYI
Constitutional Law ......... 554
BY COUNCILLOR ATTILIO BRUNIALTI
The Present Problems of Constitutional Law ..... 574
BY JOHN WILLIAM BURGESS, PH.D., LL.D.
The Separation of Powers and the Judiciary in France and the United
States ........... 602
BY PROF. FERDINAND LARNAUDE, LL.D.
Jurisprudence and Legislation ....... 619
BY PROF. ERNST FREUND, J.U.D., PH.D.
The Doctrine of Stare Decisis ....... 636
BY EDWARD B. WHITNEY, B.A.
Reference Worlds relating to Jurisprudence ..... 654
Reference Works to accompany Constitutional Law . . . 657
TABLE OF CONTENTS
The Relation of Ethics to Social Science ...... 663
BY PEOF. FELIX ADLER, PH.D.
Social Tendencies of the Industrial Revolution . . . . 682
BY PEOF. GRAHAM TAYLOR, D.D., LL.D.
Social Control and the Function of the Family. .... 699
BY PROF. GEORGE ELLIOTT HOWARD, PH.D.
The Problem of the Family 709
BY SAMUEL WARREN DIKE, LL.D.
THE RURAL COMMUNITY.
The Relations of the Rural Community to Other Branches of Social
Science .......... 725
BY PROF. MAX WEBER, DR. JUR.
The Social Problems of American Farmers ..... 747
BY PRESIDENT KENYON LEECH BUTTERFIELD, M.A.
THE URBAN COMMUNITY.
The Relations of the Urban Community to Other Branches of Social
Science .......... 763
BY PROF. J. JASTROW, PH.D.
The Problems of the Urban Community ...... 775
BY PROF. Louis WUARIN
THE INDUSTRIAL GROUP.
The Industrial Group . . . . . . . . . 791
BY PROF. WERNER SOMBART, PH.D.
Certain Psychological Phases of Industrial Evolution . . . 800
BY PROF. RICHARD T. ELY, PH.D., LL.D.
THE DEPENDENT GROUP.
The Definition of a Social Policy relating to the Dependent Group . 817
BY PROF. CHARLES RICHMOND HENDERSON, D.D., PH.D.
The Problem of Poverty 833
BY EMIL MUENSTERBERG, DR. JUR.
THE CRIMINAL GROUP.
The New Criminology ' 851
BY REV. FREDERICK HOWARD WINES, LL.D.
Works of Reference for Social Science ...... 869
Works of Reference relating to the Family ..... 871
Additional Works of Reference relating to the Family . . . 873
Special Works of Reference relating to the Industrial Group . . 874
Works of Reference relating to the Dependent Group . . . 875
Additional Works of Reference relating to the Dependent Group . 876
JOHN W. BURGESS, Ph.D., LL.D.,
Professor of Political Science and Constitutional Law at Columbia University.
(First incumbent of the chair of "American History and
Institutions" in the University of Berlin.)
DEPARTMENT XXI JURISPRUDENCE
(Hall 3, September 20, 4.15 p. m.)
CHAIRMAN: PROFESSOR GEORGE W. KIRCHWEY, Columbia University.
SPEAKERS: PRESIDENT CHARLES W. NEEDHAM, The George Washington Uni-
PROFESSOR JOSEPH H. BEALE, Harvard University.
THE FUNDAMENTAL IDEAS AND CONCEPTIONS OF
BY CHARLES WILLIS NEEDHAM
[Charles Willis Needham, President of The George Washington University, b.
Castile, Wyoming County, New York, September 30, 1848. B.L. Albany
Law School, 1870; LL.D. University of Rochester and Georgetown College,
Kentucky. Trustee of Columbian University, 1893-98; Dean of School of
Comparative Jurisprudence and Diplomacy, 1898-1902; Professor of Trans-
portation and Interstate Commerce, Trusts, and Trade-Unions, Columbian
University; appointed by President McKinley in 1900 a delegate to Congres
Internationale du Droit compare. Member of American Bar Association;
Geographic Society; American Economic Society; Cosmos Club, Washington,
THE limit of this paper will not permit me to state, certainly not
to discuss, the definitions and opinions of many distinguished
authors who have written upon this subject. My aim shall be to
state and illustrate what seems to me to be the true fundamental
ideas and conceptions of what is called jurisprudence.
Like all concepts, the idea conveyed by the word "jurisprudence"
has passed through stages of change and development. To define
clearly the present, and may I say the highest, conception, it is
necessary to review briefly these changes and thus arrive at a defini-
tion of the subject to be discussed.
In its earlier, if not its original use, this word " jurisprudence " sig-
nified simply a knowledge of the laws of state. Among the Romans
it meant the knowledge of the laws recognized, administered, and
enforced under the Roman rule. This idea required the student
pursuing the subject to learn the rules of human conduct, of rights,
of obligations, and of remedies laid down by the juris-consults and
enforced by the courts within the Roman dominion. The study of
jurisprudence meant the study of the positive, municipal law en-
forced or enforcible within a given territory. In short, it was the
" study of law," using a phrase now in common use and familiar
to every member of the profession. This original use of the word
marks the beginning of what is termed the systematic study of the
laws of a nation the classification and codification of law.
With the growth of the philosophical spirit and the scientific
method in the domain of learning, this original and practical con-
ception of jurisprudence gradually changed. Scholars and writers
arose who wanted to know the reasons for these rules of human
conduct and the sources of the positive law enforced by the state.
The spirit of investigation led to metaphysical discussions as to
what the law ought to be, and not a little speculation as to the
original source of authority. The philosophical spirit was strong
and prevalent; the scientific method was of slower growth. Specu-
lative theology was dominant among the educated classes in the
early development of systematic law; its theories, dogmatic rules,
and creeds were sacred and therefore above human authority, and
by some thought to be above ordinary criticism. All human au-
thority must, it was urged, conform to the letter of the conception
and statement in creeds of divine power and divine will. The
growth of the state and the increasing complexity of human affairs
requiring new rules of conduct, together with a widening spirit of
inquiry after truth, led to the discussion and the development of
what was termed the law of nature. This phrase was at least less
sacred, and opened the field of politics and law to freer discussion,
and the human mind began its search after right as disclosed, in
some degree at least, by human experience.
Other theories arose which need not be mentioned; speculation
was everywhere seeking authority for government and sources of
law outside of the human mind and will. These metaphysical
studies are interesting as a part of the history and development of
the subject, but time will not permit, nor does my aim require us to
review them. It is sufficient and a relief to observe that in the
course of human affairs some theologians and many jurists discov-
ered the truth contained in the statement, " The letter killeth, but
the spirit maketh alive." Then investigation and search after the
spirit of the law the principle within the rule, a knowledge of
right became the aim and work of some of the most profound
writers. Then the scientific method began to develop, and with
some to supersede the speculative spirit. The principle of a law
was sought by a study of the rule, and its Tightness determined by its
beneficial operation in human society and its harmony with other
principles embodied in other rules of conduct. These principles, as
they are discovered and stated, form a body of fundamental truth
pertaining to the character and operation of positive human law.
The principles are not formulated rules of conduct, for they can be
stated in a variety of phrases, but they are the essence of all formu-
Behind the manifestation of every visible thing there is the con-
ception of it in the human mind. Is it a painting or a statue? If
IDEAS AND CONCEPTIONS OF JURISPRUDENCE 461
so, it lived in the mind of the artist before his hand ever touched
the brush or the chisel. We call this an ideal, and sometimes ideals
are spoken of with derision; but ideals are as real and as essential
as the things we touch and handle. Within every living organism
there is the spirit or unseen force that we call the principle of life.
The form remains when the spirit is gone out of it, but there is no
longer a living organism. So every rule of conduct expresses more
or less accurately a principle a theory of right and by this
principle or theory the visible or formulated rule must be known and
judged. The principle is the source of the rule more or less definitely
fixed in the mind or minds that formed the rule, but in a much
higher sense, because more clearly understood by the study and con-
sideration of the rule and its operation, the principle becomes the
measure or standard by which the Tightness or wrongness of the rule
is finally determined.
Architecture is a science. There may be speculation as to its
origin, but we know as a matter of fact that the science grew out of
the study of structures. Man ceased to be a savage when he became
a carpenter; he became civilized when he became an architect. The
science grew out of a study of many visible subjects, the work of
men's hands. It involved the adaptation of things to some need in
civilized life, right proportions and some adornment. The concep-
tions and principles which were the result of this study and compari-
son came into being; the study and the comparison of things cultured
and enriched the mind, and in that unseen and mysterious workshop
created new and higher ideals and conceptions, which in time were
manifested in new visible forms. These principles, systematized,
formed a body and made the science which became the standard
by which all structures are judged. Looking at a building we in-
quire, Is it good architecturally? That depends upon its adapta-
tion to the uses to which it is to be put; its ability to stand the
strains that will come upon it; proper proportions and conformity
in all its lines to the beautiful. We measure or determine it by the
rules of the science. This same intellectual process is equally true
in the domain of formulated law. Is the rule expressed in a given
formula adapted to establish and maintain a right or to cure an evil?
Does it fit into and become an harmonious part of the general system
of law? These inquiries must be answered by applying as a test
the principle which ought to govern in the particular case and which
presumably it was sought to make prevalent by the formulated
rule. It will be observed, therefore, that there is a study that is
deeper and more far-reaching than the mere memorizing f rules.
The rule is the visible sign; it may be committed to memory and
mechanically applied to a condition or to conduct in human society;
but the true conception of the rule and its right application in nearly
all cases arising under it require a knowledge of the conception or
principle behind the formulated rule. These rules are the facts
that are to be investigated, and in these, or by their aid, the princi-
ples of law are to be found and a true science established. Every
science must rest upon the facts within its realm. As the facts
multiply in a given sphere of human knowledge, the conceptions
increase in number, and as these are fitly joined together a body
of principles is created, and this constitutes a science; it may be of
astronomy, or geology, or of law.
We have now reached a definition which is the modern conception
of the word "jurisprudence." It is the science of law; not the
body of positive laws enforced by a particular state, but the body
of principles and generalizations regarding all those " relations
of mankind which are generally recognized as having legal conse-
But our definition must be defined. To say the science of law
raises the question at once, What laws are included? To be scien-
tific the field of inquiry must have reasonably clear boundaries.
There are many laws. The word is sometimes misused, but we
need not stop for the purposes of this definition to notice these
inaccuracies. We have spoken of the divine law, the natural law,
and we may now add the moral law and the laws of polite society.
Are these within the field of investigation and study in constructing
this science? They are in themselves important, but they certainly
do not fall within the meaning of the word " law " as used in our de-
finition. It is difficult to formulate a definition exactly covering the
field of inquiry, and excluding that which belongs in the field of pure
philosophy or metaphysics. Take that old definition, law is " a rule
of civil conduct prescribed by the supreme power in a state, com-
manding what is right and prohibiting what is wrong " a very
good one for some purposes, assuming that all laws are prescribed
and are commands of the state ; but there are rules of conduct to be
studied which cannot be called commands of the state. If we say
all laws are commands determining what is right and prohibiting
what is wrong, we shall find ourselves limited to public law, statutory
law, and judicial determination. This definition, therefore, is too
The moral law and what are termed the laws of polite society are
certainly worthy of study and are to be observed; but these laws do
not fall within our definition.
I do not say that an understanding of what is termed ethics is not
necessary for the student of the science of law; it is important;
without it the reasoning of the scholar will be quite wanting in essen-
tial quality and strength. But these laws fall within another science
and do not come within our definition. Like most of the principles
IDEAS AND CONCEPTIONS OF JURISPRUDENCE 463
of science, this word " law " may be defined in a variety of ways, and
taken together these definitions may include all that is to be con-
sidered; but it seems preferable to have some fixed guide outside
the wording of a rule; therefore, adding international law, I like the
definition of Sir Frederick Pollock, who says law is " the sum of those
rules of conduct which courts of justice enforce, the conditions on
which they become applicable, and the manner and consequence of
their application." This refers us to the jurisdiction of courts.
I do not say that in determining the principles contained in the
rules of conduct to be studied we may not call to our aid as tests
rules and recognized principles that lie outside of this definition.
What I claim is that to constitute the science of law, as the phrase
is here used, it must be a system or group of principles which pertain
to and should be embodied in the rules coming within this definition
of law. To determine whether a given rule comes within the general
definition quoted, we have only to inquire whether it be, first, an
international law recognized by the civilized nations of the earth,
a principle which dominates states in their intercourse with each
other; or, second, whether it be a rule which the courts of justice
of a civilized nation enforce, or follow in determining the conditions
on which the substantive law becomes applicable, and the manner
and consequence of its application. This includes the whole field
of the judicial and professional action of judges and lawyers.
Having limited the science to the laws falling within this juris-
diction, we may now say that the first and highest conception of
jurisprudence is, that it is the knowledge of a body of principles co-
ordinated and systematized, pertaining to the fundamental laws
which states and the courts of states recognize and enforce in deter-
mining the conduct of a state in its dealing with other states, the
privileges of citizens temporarily within foreign territory, the rela-
tions and obligations of inhabitants to the state, and the relations
of these inhabitants with each other.
This conception gives a well-defined field to jurisprudence. It is
not the " study of law " as that phrase is usually and properly under-
stood, meaning the study of formulated law stated in maxims,
constitutions, statutes, opinions, and decrees of court, but it is the
field which in a sense lies back of all this; it is the body of principles,
the spirit of the law, which enlightened authority will seek to embody
in the visible formula.
And now let me ask whether there is not another meaning, sec-
ondary it is true, that may properly be given to this word " juris-
prudence." It is a science; may it not also be called an art? The
proper application of a science to the construction of visible things
is something more than the putting together of material. A car-
penter can build a house, but only an architect can apply the princi^
pies of the science of architecture in the building of a house. The
carpenter and the architect in common use stone, brick, mortar,
and wood; the structure made by the carpenter may be strong and
may serve as a shelter from the storm; but the architect puts some
things into his building which are not material. We call this adapta-
tion to a particular use; proper proportion, adornment. The one
has a knowledge of a body of principles which the other does not
possess. This knowledge is science- The application of it in the
construction of a building is an art. Is there an art in formulating
law for the conduct of peoples? A tyro may put together words
and create a law. It will have authority, and may chance to ex-
press some true principle of government, but it will not have proper
limitations; it may disregard conditions; it may destroy or impair
the operation of other principles of equal value, or create the very
evil it seeks to destroy.
Suppose a legislature, impelled by some sentimental reason, exer-
cising its political and legislative power, should undertake to deter-
mine the primary evidence of a contract in an action thereon between
principal and agent, and should enact that the paper containing
the order to which the principal affixed his name with his own hand
should be the best evidence of the authority given. This would
give expression to a very sound principle, for is not my letter to my
agent the true and best evidence of what he is to do for me? But
what about orders by telegraph under such a statute? This great
agency of commerce is overlooked. The agent will not act upon
the message delivered to him, for it is not the best evidence of his
authority under such a statute. Wise jurists have worked the pro-
blem out differently in the best interest of trade by making the dis-
patch delivered and to be acted upon the best evidence. Under
a statute such as we have supposed, the use of one of the greatest
facilities of commerce would be practically destroyed, while under
the rule formulated by the jurists the telegraph has become an effi-
cient factor in modern business.
Again, a legislative body determines hi its legislative capacity
that it will prevent the formation of industrial " trusts " and passes
an act declaring all contracts, combinations in the form of trusts or
otherwise in restraint of trade, void, and the persons making them
guilty of a misdemeanor; now, suppose that the common carriers,
the railroads, to protect themselves against the demands of powerful
corporations for special rates and privileges, enter into contracts
fixing a fair rate to be charged all shippers alike, and providing heavy
penalties to be paid by the company violating the contract. A case
comes before the proper tribunal involving the contract between
the railroad companies, and this act by its wording is declared to
apply not only to the trusts but also to the railroads these quasi-
IDEAS AND CONCEPTIONS OF JURISPRUDENCE 465
public corporations carrying On the business of transportation and
the railroad contracts are declared void. Thereupon a great cor-
poration, which the legislature so much feared, now demands special
rates and privileges over the public highways; it insists upon lower
rates and better services than are accorded to its competitors in order
that by such favoritism it may crush out competition and secure a
monopoly. It sends millions of tons of freight, and the manager of
every line of railroad is anxious to get the business. Will the mana-
ger yield to the demand and give the special rate to get the business?
Will he give better rates and facilities than his competitor across
the way in order to secure the traffic of this producer and shipper of
enormous quantities? It is competition, and that is what the legis-
lature wanted. There is now no mutual contract between these
quasi-public servants, with penalties attending the violation of the
agreement, to prevent acceding to the demand. The special rate
will be given and the industrial trust which this legislation sought to
curb thrives under the law. The great corporations could hardly
have done better for themselves had they formulated the statute.
All who formulate law, be they legislators or jurists, must use
words; but the jurist, having a knowledge of the science of law, will
put into his formula limitations which will recognize existing agen-
cies and conditions in society, and while he gives force to the prin-
ciple invoked he will not allow its operation, through the careless
wording of the rule, to destroy or impair the operation of other
principles of equal value. He has a knowledge of the science of
law and formulates his rule according to its principles, using words
covering all the conditions and principles involved. This is the use
of the science; the application of the science; the ART of jurispru-
We may next inquire whether it is proper to affix any territorial
limits to the investigation. In other words, can there be a juris-
prudence of a particular state? Is it proper to speak of the juris-
prudence of England, or of France, or of Germany, or of any other
nation? Can there be more than one science of law? We must
recognize that there is a diversity in the forms of government which
formulate and enforce rules of conduct. Peoples differ in language,