Page:The Green Bag (1889–1914), Volume 25.pdf/136

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Neo-Hegelianism in Jurisprudence ler, and his low estimate of social dynamics, result in a failure of tangible contribution to the problem of stating the ideal law for a given time and place. Neo-Hegelianism is a movement diffi cult to characterize with precision be cause we have no means of judging of its mode of dealing with the problems of external reality and of knowledge. Berolzheimer, it must be supposed, rejects the identity of subject and object,37 and he apparently believes in a real external world. Through the position of volun tarism, rather than through a doctrine of objectless ideas, Neo-Hegelianism dis covers its affiliation with the system of Hegel. Voluntarism is one of the domi nant present-day tendencies, as need be made clear merely by citing the instances of Wundt, James, and Bergson. But the contemporary voluntarism is mostly a naturalistic voluntarism, in so far as such a phrase may be employed without a contradiction in terms. A transcen dental version of the teleological inter pretation is for the most part not attempted. Berolzheimer's empiricism makes up only a part of his philosophy. Something more is necessary in philoso phy, he holds, which shall reflect the results of empirical science and yet pass beyond them.38 But he is able to offer nothing to supplement empirical science but the interpretative or normative sciences, including ethics and law. What he really does is to dislocate them from their logical position in the empiric sys tem. This practically amounts to a restriction of empiricism to the field of the descriptive sciences. Berolzheimer's voluntarism has its root in his psychological attitude. Vol untarism and phenomenalism are oppo site views in psychology; they may be »7 P. 229. >8 P. 8.

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combined by means of concessions on either side but cannot be merged into one.39 Voluntarism in psychology calls for voluntarism in social psychology, and consequently in all the social sciences, including that of law. Berolz heimer's rejection of the naturalistic treatment of the will thus leads him to repudiate legal sociology as an adequate discipline. This is because he conceives of sociology as offering mechanical ex planations that cannot account for voli tional processes. For this reason, and perhaps also for the reason given by Small,40 he belittles the claims of sociol ogy, to which the normative sciences are actually related not as supplementary but as subordinate disciplines. Berolzheimer's anti-naturalistic bias thus carries with it a predilection for the interpretative in contrast to the descrip tive treatment of legal institutions. His economic parallelism springs from the desire to formulate an ethical interpre tation rather than a dynamic theory of law. He does not perceive that this interpretation requires for its sound ness the active co-operation of sociology. On the contrary, he segregates his philosophy of law from the empirical sciences, thereby taking up a position which he assumes to be idealistic, be cause opposed to empiricism, but which is really in antithesis not to empiricism but to dynamic sociology. The position therefore comes close to being a vitalistic realism, rather than an ordinary idealism, and the term Neo-Hegelian does not so well describe the philo sophical doctrine of the school as its general temper. Dr. Berolzheimer is in manifest sympathy with Hegel as shown by his inability to reconcile free-will and determinism, his disposition to treat 88 See "Psychology in the System of Knowledge." by Hugo Miinsterberg, Harvard Psychological Studies. I. 642. <0 Pound, in 24 Harv. L. Rev., pp. 618-9.