Anarchism

by Paul Eltzbacher

The second line of thought is jurisprudential skepticism. In view of the weakness of jurisprudential dogmatism it foregoes judgment on whether a legal institution ought to exist or not, and pronounces judgment only on whether the tendency of evolution gives ground for expecting that a legal institution will persist or disappear, arise or remain non-existent. It embraces, therefore, the doctrines of the evolution of law: that is, the schools that undertake to inform us what sort of law is to be expected in future—for instance, whether the legal institution of marriage has a prospect of remaining in force among us. Its best-known forms are the historical school in the science of law, and Marxism.

The weakness of jurisprudential skepticism consists in its not meeting our want of a scientific basis that shall enable us to recognize as correct or incorrect the incessantly-appearing judgments on the value of legal institutions, and to approve or disapprove the manifold propositions for changes in law.

The third line of thought is jurisprudential criticism. In view of the weakness of jurisprudential dogmatism it foregoes passing judgment, without regard to the particular circumstances under which a legal institution operates, on whether that institution ought to exist or not; but yet in view of the weakness of jurisprudential skepticism it does not forego answering the question whether a legal institution ought to exist or not. It therefore sets up a supreme governing principle by which legal institutions are to be judged with regard to the particular circumstances under which they operate, the point being whether, under the particular circumstances under which a legal institution operates, it fulfils that supreme governing principle as well as is possible under these circumstances, or at least better than any other legal institution. It embraces, therefore, the doctrines of the propriety of law: that is, the schools that set up fundamental principles by which it is to be determined what law—for instance, whether the legal institution of marriage—ought under any particular circumstances to exist or not to exist.

2. With respect to the State these three lines of thought in the philosophy of law may arrive at different judgments, each one from its standpoint.

First, to the affirmation of the State.

So far as the schools of jurisprudential dogmatism affirm the State, they approve of it unconditionally, and so for our future as well as elsewhere, without any regard to its effects under this or that particular set of circumstances.

Among the numerous affirmative doctrines of the State in the sense of jurisprudential dogmatism, the teachings of Hobbes, Hegel, and Jhering may perhaps be selected for emphasis as belonging to different sections of history.

So far as the doctrines of jurisprudential skepticism affirm the State, they foresee, looking to the course evolution is taking, that in our future the State will continue to exist.

The most notable representatives of jurisprudential skepticism, such as Puchta and Merkel, have offered no teaching regarding the State; but affirmative doctrines of the State in the sense of jurisprudential skepticism may be found, for instance, in Montaigne and Bernstein.