Everywhere we can trace the influence of medieval logic on the formation of legal concepts, and everywhere we can find references to natural law helpful in supporting arguments for doing things one's own way, but frankly our laws - in their general sense The majority of the language remains non-academic. Here, there are huge benefits. If we lose the advantages which the study of civil law gives to the method, we retain the danger of putting new wine in old bottles, and we avoid the introduction of doctrines which have little bearing on the facts. The Moots and Readings of the Inns were the university of English and American lawyers—a narrow school, perhaps, if we think of general culture, but also a school of every day and every occasion. A school that is constantly in contact with practice and life. There may be formalism, fiction, artificiality; but through and with these, people's needs are realized. Yellin's proposition may have been stated again and again by our own laws. In a development where many other factors are obscured, the purpose is clear. The formal reasoning given for the prohibition of property rights restricting inheritance is unsatisfactory; the purpose for which it functions is unquestionable. How the doctrine of consideration is adopted remains a matter of discussion and research, but the enforceability of informal agreements is a concession to practical requirements, and one might suspect that the practical requirements are in place against consideration. The denial of extended enforceability is most important when lacking. If we ask why our courts find loopholes in the Statute of Uses, the real answer is not that one right of use cannot be created by another right of use (which is not even formally the whole truth), but that the English cannot live without utility and trust. But, over time, not all got along well with the common law. It can break new ground; it can still stand in the eighteenth century, which embodied much of the Law Merchant; but it cannot deny what was once accepted. [3] The worst aspects of criminal law, evidence law, real estate law, and marital law were irrevocably fixed. The more the law shows itself to be incompatible with the needs of modern life, the more obvious is the tendency of its defenders to regard it as the perfection of reason. The debt owed to the formalism that saved England's freedom in the seventeenth century has been paid dearly by the complacency of the eighteenth century. It took a genius like Bentham to make people realize again that laws are made for men, not man-made laws. Legislation has been sufficiently positive since his time, and most of the evils against which he protested have been removed or alleviated. But the disjunction between the law and the life of the community still creates a great deal of misfortune. Rules and judgments that no longer have any real value still linger on if they ever existed. Law is still a very abstruse science. Legislative reform has made it more applicable, but not clearer to the layman. Lawyers and judges are often immersed in the details of specific cases and have little time to think about the broader purpose of the law. Public policy has been rightly described as an untamed wild horse: but sometimes there is no other; and sadly it has an untrained rider.

The course of German legal development has always been extremely different. Only the vaguest political unity, without a distinct legislative body, without a distinct judicial system, maintained complete diversity in the development of its local laws only through the inheritance of Roman law. Thus academic law, the teaching of law in the universities, became German common law, largely replacing local and local law, and further intervening where local law remained silent.

What it follows is that the field where law can be developed lies in universities rather than courts: people who are "proficient in law" are professors or writers, not judges and lawyers, and the influence of the former class on it is It is difficult for those of us who grew up in the tradition of judge-legislation to understand.

These circumstances have the advantage of maintaining the law in the context of other liberal studies and of developing it by connecting it with them; but they impair its prompt satisfaction of practical needs and hinder the drawing of a line between law and the principles of moral and political science. Clear boundaries. The majority of Roman legal texts are not applicable to modern situations; however, it is assumed that correct interpretations underlying principles of general applicability can be found in them. However, on the one hand, in modern usage, the eighteenth-century system of "natural law" or "natural rights" was primarily a general expression of principles ultimately derived from Roman law, but this compared them to the consequences of a priori theory. The desire to adapt is often accompanied by the tampering and distortion of texts. The philosophical upheaval of the late 18th and early 19th centuries shook the foundations of the doctrine of natural rights, and the spirit of academic and historical research - of which Savigny was the most important representative in the legal field - insisted on a truthful interpretation of the text, which in the long run was Necessarily inconsistent with their adaptability to modern life.

The typical doctrine of the German historical school—that law was the product of a somewhat mystically conceived determination of the national will—had an immediate effect on the project of examining codification and legislation. The growth of law is seen as something akin to a natural process in which legislators cannot and should not interfere; the most likely thing for it to be allowed is to give greater clarity to the will of the nation as embodied in existing usages and customs expression, or make corrections in details. The civilized world owes a great debt to the historical school for the splendid and patient inquiries it has rendered, and for the favored doctrine which it has continued in Germany and elsewhere has been lowered to the ground: Germany has all the more reason to It is grateful for preventing premature codification. However, its legal concept must be invalid in actual results, first of all because it is located in a country where popular participation in the formulation and application of laws is at a minimum. For all practical purposes the public will has to be regarded as belonging to the legislators, judges, and learned lawyers (primarily the latter), and in them alone it finds conscious expression. Undoubtedly, by establishing the importance of national character, the historical school stimulated the investigation of ancient customs in German law and supported the dream of the reconstruction and revival of native law; this trend had important practical effects in the modern imperial code. But for the present purpose one had to rely again on the text of Roman law. With the help of all modern academic sources, they have been subjected to rigorous scrutiny: the main concepts are found in them, and inferences must be derived from these concepts with strict logic. Concepts must be reasonable, if not in view of practical needs, at least in view of the requirements of legal philosophy; they must also be consistent with the text. This work was characterized by extraordinary sensitivity, originality, and labor, and brought about the most fruitful results; there is no doubt that without the work of Savigny and his followers, the imperial code of modern Germany would not be possible.

But without Yellin, it would also be impossible. Because the method he rebelled against was fundamentally unsound. It can only work through something like well-intentioned deception. Although natural rights were abandoned, there must have been a return to traditional practices similar to those of the natural rights school. The underlying concept must have the necessary persuasiveness of its own, and it must be present in the text, or at least implicit in, or consistent with, the text. Unintentional deception is inevitable; you must fit your legal concept into the result you want to derive it from; you must place unnatural meaning on the text to make it consistent with the concept. Worst of all, in the rush to satisfy the demands of philosophy and doctrine, practical considerations are forgotten or willfully ignored. "Law", said Savigny's favorite disciple Bethmann-Hollweg, "is the object of pure science, which is never concerned with questions of application or applicability." [4] In the current work, Yelin has reason to reject Puchta's doctrine that legislators can deprive customary law of its enforceability in courts, but cannot deprive it of its nature as law.

When English-speaking lawyers learned of Puchta's assertions regarding the absolutely unthinkable principle of partial intestacy and true representation of the agency [5], they were beginning to understand Yellin's elsewhere discussion of Puchta's "concept of There is no difficulty in the cynicism of Begriffjurisprudenz.

Jelling himself grew up in this school. When he was working on the first part of his "Geist des romischen Rechts" (Geist des romischen Rechts), he had a close relationship with his teacher Puch. The towers parted ways. It (as he understood it) was a matter in which Roman law must be dealt with as existing law, and in its historical development; its method as well as its history are valuable to all ages, But the rules of Roman law did not have universal validity. “Through Roman Law but beyond it” was a precept that summed up in his eyes the significance of Roman law to the modern world. Therefore, his views are more directed towards the present and the future. The Spirit of Roman Law was not completed. As the work progressed, he felt more and more the constraints that his plans imposed on the thoughts and words currently in his mind. In the final part of The Spirit of Roman Law (Part 1 of Part 3), he expresses his rejection of the treatment of law as a system of logical types, and his conception of purpose as the determining factor in law - "subject to "Protection of interests" as the essence of legal rights - began to attract attention. But he could no longer content himself with articulating fundamental doctrines under the guise of a critique of ancient law.

So he began writing The Purpose in Law, which, it is fair to say, was a work that liberated German legal thought from the shackles of the Digest and the usurpation of philosophical systems. 's writings. Countless eternal values ??have been accomplished under those stern taskmasters: for their sake alone the work of Jelin could not have been completed. But the time has come to return to current reality and lift the prohibitions that Savigny placed in legislation.

There is no need to say much about the significance of Yellin's teachings for social science researchers and those concerned with social and legal issues, both as thinkers and practitioners. His rejection of "conceptual jurisprudence" and the "written reason" of Roman law as the last word in legal and legislative theory led him to abandon the individualism of the early and mid-nineteenth century, and he laid the groundwork for social utility. The emphasis is on providing an impetus and justification for the "collectivism" - used in the broadest sense, as Professor Dicey used it [6] - that has come to typify our own age. trend and is a force that has not lost its effectiveness. This is the most striking and immediate consequence of Jerlin's doctrine. At any rate, it is a practical conclusion that he drew for our own time, and whether we accept it or not, it is at least to Jerlin's credit for foreseeing the urgency of this trend, which was only beginning when he wrote Be known. For myself, I believe that this "collectivist" trend is reasonable for current needs, and its dangers should not be feared or exaggerated. But it seems to me, by comparing Yelling's doctrine with Bentham's, that the principle of social utility as conceived by Yelling is not inconsistent with, and is in fact required by, the due evaluation of individual claims. needed, and Bentham's theory can also be transformed into complete despotism for use.

But before turning to this comparison, I would like to focus on some practical considerations of a more general type that follow from Jerlin's main position.

On the one hand, the concept of law as purpose-determined will strengthen our respect for and trust in the law. We should believe that in most cases it retains its power, since it exerts an influence on the most common measures required by humankind. We should be prepared to meet the needs of reform or revolution on the basis of democracy.

We should not portray our law as a closed system of unbreakable, immutable principles; we should not fashion it as a perfect work of reason. Instead, we should acknowledge the claim that human institutions must satisfy human needs. We feel confident in asserting, however, that this proposition has never been entirely ignored in the enactment of the law. We should rely on a strong presumption that, at least in its main outlines, our law is and has been adapted to those needs. Where obvious evils are pointed out as demands for immediate legal reform, we should ask whether it is certain that the law has not been taken into account, and that to deny the intervention of good reasons would be to undermine higher and wider needs. Only in this way can the existing legal order protect against hasty claims, whether based on egoism or compassion.

On the other hand, we should not object to any disregard for such claims. If we abandon—as I believe we must—the notion that no system of positive law should be blind to the concept of natural rights in the sense of specific mechanisms of their effects, we will not be able to create anything sacred and immune to criticism and attack. legal rules. For if reliance on the purposive character of law is a reason for optimism, then it is uncritical optimism; it is not Jerlin's doctrine that law can at all times succeed fully in meeting the ends it serves. And it has no answer to the rationality limitations of lawyers and legislators. Secondly, if at any moment the law had to take account of purpose, then such a law would certainly be impossible. The purposes of law are embodied in legal concepts that must be developed independently; they cannot be required at every step to meet special needs. Otherwise, systematization and certainty will be unattainable. But this autonomy of the law - if only due to the excess or deficiency of logic - will lead to divergences between the law and the needs of life, which from time to time require correction. Moreover, the predominance of one class and another within the political community leads to the promotion of ends inconsistent with the interests of other classes gaining or seeking political power. Finally, changes, whether in economic conditions or in ideas and ideals, bring new light to purposes which law - under other conditions, material or moral - cannot adequately serve. Therefore, if the law is fundamentally questioned as being unable to meet or no longer meet human needs, it cannot at any time refuse to submit to any criticism, even of its most fundamental principles; it can only insist that this questioning should be Strong evidence. To what extent this change can or should be achieved by judicial decisions or legal theories, and to what extent the intervention of legislators is required, is a question in the legal field that depends on the binding force of precedents, the characteristics of statutes, and the broad scope of judicial interpretation. Or the problem of different freedoms in the narrow sense. Jelling was alone, or almost alone, among German jurists in expressing his admiration for Bentham's work; In terms of determination to connect the facts of life, the two people have many similarities. Both showed an inquisitive quality toward seemingly pedantic ideas, Bentham in his detailed classifications and penchant for coining words to mark distinctions, and Jerlin in his understanding of their origins. in a more naive belief in the possibility of revealing the inner meaning of words. However, these are only superficial touches. Fundamentally, both emphasize the concept of their legal function.

However, Yellin has two big advantages. First of all, Bentham's ahistorical intention often caused him to only see the stupidity and injustice records of the past and present, and led him to believe that through the identification and application of the principle of utility, a new paradise and a new world could be achieved. created. Although he noticed the one-sidedness of the historical school, Yelin was full of the spirit of history, and he believed that the principle of utility has always played a role in human affairs, although it was unconscious.

Once it became clear to the Benthamite that the economic hypotheses on which his individualism was based were imperfect and that for practical political purposes individualism collapsed. If unlimited freedom of contract cannot create the greatest happiness for the greatest number of people (actual material well-being will be the main consideration), and if it is very likely that this happiness can be improved through regulation and intervention, then Bentham's utilitarianism not only allows , and requires that individualism should give way to the most feasible collectivism. Professor Dicey has rightly noted the debt owed by collectivism to Bentham. [7] It is now certain that Yelling would have approved of the general trend in modern legislation in this direction, and may have admitted most of its details.

It is clear that he approved of this large-scale transference, first from the individual to a self-determining society, and then from society to the state. He did not set any limits on the increase in state activity. Moreover, it is clear from his critique of von Humboldt and John Stuart Mill in Chapter 8 that he was unable to define a state of individual freedom in which state intervention was illegal. field. But it is equally clear that he did not come to the hasty conclusion that all individual rights must disappear in the final recourse in the face of claims of social utility. On the contrary, he recognized that the problem of the limits of state power and of law as a guarantee of individual liberty was a real problem that stood in his way and that he could not fully resolve. He cannot solve it, that is, in the sense in which the proponents of natural rights claim to have found methods and solutions to problems that are good at all times and under all circumstances. Moreover, he insists that the problem is unsolvable in this sense. It is what he calls an "ever fluid" problem, a problem that will get different answers at different times and under different conditions. It seems that is correct. But admitting that there is a problem is a concession to a value worth preserving in the doctrine of natural rights, namely its insistence on the reality and value of the individual. Although he rejected the effort to treat law and society as mere derivatives, at the same time he clearly pointed out a certain tendency to regard society as the only reality. Bentham's doctrine, which on the one hand denies natural rights, and on the other hand regards social institutions as mere instruments for increasing the sum of the feelings of happiness, has no value for the storage of this feeling in the individual; it does not, for example, answer the claim that the majority oppresses the minority. The problem is that once the satisfaction of the majority of people with increased happiness outweighs the amount of suffering for the oppressed.

It is said that Jerlin retained his identity as a practical idealist through his theoretical utilitarianism. This statement rightly emphasizes both aspects of his social philosophy; however, it should not mislead us into thinking that there is an inconsistency between the two. Plato was both a utilitarian and an idealist, and his example should warn us against confusing utilitarianism with hedonism. In its true sense, utilitarianism is nothing more than the rejection of isolating any part of human activity and deeming it separate from its results, the rejection of the belief that ultimate ideals can be independent or hostile to each other. It is through his insistence on this truth that Jerlin's work has played and will continue to play the greatest role in deepening the development of law and legal science and bringing them into their correct relationship with other branches of human activity and knowledge. middle.