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The Green Bag
(4) Yet the formulation of a statement of what the law ought to be is a legiti mate problem of legal philosophy, and a definite position on political questions is consistent with an unprejudiced treat ment of objective facts.9 These positions may be more minutely examined. I. The Parallelism between Law and Economics. The outcome of Berolzheimer's presentation of his views is un satisfactory, notwithstanding his use of pertinent historical illustration, if one is looking for detailed argument in sup port of the theses advanced. A vague general concept of the correlation of legal and economic institutions will not suffice to explain the evolution of law throughout history. History shows that economic institutions influence, if they do not determine, the law, and that they are likewise acted upon by the law. The mode of this interaction is a socio logical problem requiring careful inves tigation before general principles can be formulated. Any one can see that economic and legal changes do not move forward pari passu, but that each offers resistance to the other, yet the theory of so close a relation as that between form and content implies that changes in the law are automatically embodied in economic institutions, and vice versa. There can be no true parallelism, but only a correlating tendency the nature of which needs to be accurately deter mined. This holds equally true if the two kinds of institutions are viewed as separate products of the life of society; the field of investigation is then broad ened, rather than shifted, and the inter action of the two specific forces cannot be overlooked merely because the entire complex of social forces is considered. The vagueness of Berolzheimer's concepAuthor's Preface, pp. xlv-xlvii.
tion destroys its scientific value, and his parallelism is obviously a speculative rather than a dynamic principle which fails to offer a reasonable explanation of the causes of the legal and economic movements of history. His explanation of the emancipation of the fourth estate at the close of the nineteenth century as an economic movement, for example, without any light on the actual causes of this movement, whether they were internal economic causes or external social causes, is not satisfactory, for it implies overconfident generalization on economic or sociological premises. Even if "culture" itself is an inexplicable phenomenon, and philosophy means something more than sociology, an aux iliary sociology must be employed to define the objective processes through which culture shapes institutions. Berolz heimer's treatment of history is super ficial because he is indifferent to causes and concerned only with results. His indistinct notion of law as a reflex of economic movements stops at the threshhold of a fertile subject and offers no real explanation of the processes of legal evolution. Dr. Berolzheimer's historical treat ment reveals vast industry and wide learning. Yet in such a panoramic treat ment scant opportunity is afforded for giving to each period the study necessary to a thorough comprehension of its forces. With the inevitable emphasis on the concrete, there is not room for an exhaustive critical survey of the cul tural tendencies of each epoch, and of their interactions in the field of social institutions. Law is but one of the manifestations of these cultural ten dencies; governmental, economic, and ethical institutions also require investi gation, and the part played by law in the drama of this progress is to be ascer tained only by discovering the nature of the forces at work in its production
