The first, essentially PRACTICAL in its character, confined to a statement of facts, and buried in learning, cares very little by what laws humanity develops itself.To it these laws are the secret of the Almighty, which no one can fathom without a commission from on high.In applying the facts of history to government, this school does not reason; it does not anticipate;it makes no comparison of the past with the present, in order to predict the future.In its opinion, the lessons of experience teach us only to repeat old errors, and its whole philosophy consists in perpetually retracing the tracks of antiquity, instead of going straight ahead forever in the direction in which they point.
The second school may be called either FATALISTIC or PANTHEISTIC.To it the movements of empires and the revolutions of humanity are the manifestations, the incarnations, of the Almighty.The human race, identified with the divine essence, wheels in a circle of appearances, informations, and destructions, which necessarily excludes the idea of absolute truth, and destroys providence and liberty.
Corresponding to these two schools of history, there are two schools of jurisprudence, similarly opposed, and possessed of the same peculiarities.
1.The practical and conventional school, to which the law is always a creation of the legislator, an expression of his will, a privilege which he condescends to grant,--in short, a gratuitous affirmation to be regarded as judicious and legitimate, no matter what it declares.
2.The fatalistic and pantheistic school, sometimes called the historical school, which opposes the despotism of the first, and maintains that law, like literature and religion, is always the expression of society,--its manifestation, its form, the external realization of its mobile spirit and its ever-changing inspirations.
Each of these schools, denying the absolute, rejects thereby all positive and a priori philosophy.
Now, it is evident that the theories of these two schools, whatever view we take of them, are utterly unsatisfactory: for, opposed, they form no dilemma,--that is, if one is false, it does not follow that the other is true; and, united, they do not constitute the truth, since they disregard the absolute, without which there is no truth.They are respectively a THESIS and an ANTITHESIS.There remains to be found, then, a SYNTHESIS, which, predicating the absolute, justifies the will of the legislator, explains the variations of the law, annihilates the theory of the circular movement of humanity, and demonstrates its progress.
The legists, by the very nature of their studies and in spite of their obstinate prejudices, have been led irresistibly to suspect that the absolute in the science of law is not as chimerical as is commonly supposed; and this suspicion arose from their comparison of the various relations which legislators have been called upon to regulate.
M.Laboulaye, the laureate of the Institute, begins his "History of Property" with these words:--"While the law of contract, which regulates only the mutual interests of men, has not varied for centuries (except in certain forms which relate more to the proof than to the character of the obligation), the civil law of property, which regulates the mutual relations of citizens, has undergone several radical changes, and has kept pace in its variations with all the vicissitudes of society.The law of contract, which holds essentially to those principles of eternal justice which are engraven upon the depths of the human heart, is the immutable element of jurisprudence, and, in a certain sense, its philosophy.Property, on the contrary, is the variable element of jurisprudence, its history, its policy."Marvellous! There is in law, and consequently in politics, something variable and something invariable.The invariable element is obligation, the bond of justice, duty; the variable element is property,--that is, the external form of law, the subject-matter of the contract.Whence it follows that the law can modify, change, reform, and judge property.Reconcile that, if you can, with the idea of an eternal, absolute, permanent, and indefectible right.
However, M.Laboulaye is in perfect accord with himself when he adds, "Possession of the soil rests solely upon force until society takes it in hand, and espouses the cause of the possessor;" and, a little farther, "The right of property is not natural, but social.The laws not only protect property: they give it birth," &c.Now, that which the law has made the law can unmake; especially since, according to M.
Laboulaye,--an avowed partisan of the historical or pantheistic school,--the law is not absolute, is not an idea, but a form.
The same opinion was recently expressed from the tribune by one of our most honorable Deputies, M.Gauguier."Nature," said he, "has not endowed man with landed property." Changing the adjective LANDED, which designates only a species into CAPITALISTIC, which denotes the genus,--M.Gauguier made an egalitaire profession of faith.
But why is it that property is variable, and, unlike obligation, incapable of definition and settlement? Before affirming, somewhat boldly without doubt, that in right there are no absolute principles (the most dangerous, most immoral, most tyrannical--in a word, most anti-social--assertion imaginable), it was proper that the right of property should be subjected to a thorough examination, in order to put in evidence its variable, arbitrary, and contingent elements, and those which are eternal, legitimate, and absolute; then, this operation performed, it became easy to account for the laws, and to correct all the codes.
