Social Value and Reality in Current French Legal Thought

Abstract

F ROM A COMPARATIVE VIEWPOINT, the evolution of legal theory is particularly significant as an index to the ultimate conceptions that from time to time are regarded as most vital in the interpretation and transformation of law. As such, the recent French publications relating to jurisprudence are illuminating in the emphasis placed upon social value and reality as the center of interest in legal philosophy. In a previous issue of this Journal, attention has been drawn to the realistic method of elaboration developed by Dabin and his concern with values.' Analogous tendencies are to be observed in the recent works of the late Reglade, of Roubier, and of Haesaert, which are here reviewed. Traditional French doctrine, it has been said, basks in opposition of fact and law. It conceives law and rights as imprescriptible, since what ought to be endures, even though it can never be realized. To say there is nothing just or unjust except what positive laws command, is to say that before circles had been drawn, the radii were not all equal. This, the most incisive formulation of French rationalism concerning law, was written by the same Montesquieu2 who opened a new and different path by investigating the dependence of law on physical, economic, and social factors and is correctly regarded as a forerunner of historical and sociological jurisprudence. The example contains a warning against hasty generalization. The remarkable duality of French doctrine, on the one hand pointing to custom as the sure empirical proof of law, and on the other hand regarding security as the basic social value and written law its best guarantee, sometimes even minimizing the role of custom as a mere concession of the sovereign,