laboring men, possibly had a lower standard of living', and were of a different skin. Their ignorance of American customs and their disposition to organize into "gangs" made possible their exploitation by contractors, often resulting in the undercutting of white men. San Francisco was in the hands of the unions, the policy of which was to diminish the supply even of white labor. Hence their hostility to any immigration was natural. There is little evidence, however, that the Japanese were actually driving white men from employments. The menace from the Japanese lay not in the present, but in the future. From this standpoint, the attempt to prohibit immigration, the end which the San Francisco agitation had in view, was legitimate.

But even this did not justify the tactics employed by the Exclusion League and Schmitz's henchmen. Such politicians were perhaps not expected to be adequate judges of the means to be used. They may have been ignorant of the grievous effects of their appeals to race prejudice, their boycotts, and their violence, on the relations between America and Japan. But it was not so much ignorance on the part of these politicians as it was deliberate intent, which led them to choose the means they did. Schmitz used the School Board and the Exclusion League to shield himself, though unsuccessfully, from the Grand Jury. The order of the School Board came out only a few weeks before his indictment. But the agitation arising from it and his junket to Washington to "keep the country out of war" did not occur until afterward. Even leaders in the demand for exclusion denounced Schmitz's manipulation of the issue. On March 12 the Chronicle declared:

Schmitz had no business to go near Washington at all. He was not invited, but butted himself in with the obvious intent to divert public attention from his impending trial for alleged boodling. Schmitz had nothing to do with the action of the Board of Education except on the

The Japanese standard of living is lower than that of the north-European immigrant, but probably no lower than the south and central European; see Reports of the Immigration Commission, vol. 23, pp. 137-138.

assumption that its members are mere puppets arranged to jump wh Schmitz pulls the wires. Even if that is the case, there was no ne

of making an indecent exposure of it.'

Although Schmitz failed personally to profit by the anti-Jap nese agitation, he established a precedent which less desperat politicians since have followed.

Inasmuch as the Japanese were for the most part located i the cities, the agitation of 1905-1907 originated largely with the labor unions. Those Japanese who had gone to the coun try were hard and willing workers, during a period of labor scarcity; as yet they were willing to remain wage-earners. Consequently, the farmer had little complaint to make against them. In succeeding years, however, the Japanese, because of increasing immigration, city boycotts, and accumulating capital, have moved en masse to the country and have begun to compete with the white farmer. As a result, the protest against the Japanese on the Pacific Coast during the last ten years has come more and more from the rural districts and interests and it has taken the form of legislation attempting to drive the Japanese off the land back into the cities. This phase of the agitation will be discussed in the concluding section of this article.

1 The Los Angeles Times (quoted in Johnson, op. cit., p. 18) in referring to the indicted mayor's declaration that if necessary he would lay down his life in battle against the Japanese, caustically remarked: "It is a notable fact that his Honor has never laid down anything of value. His promise, however, would almost reconcile anyone to a war with Japan." The Los Angeles Express also declared that "nothing less than the hanging of the Japanese by the toes would satisfy some of the anti-Japanese agitators in San Francisco." RAYMOND LESLIE BUELL

HARVARD UNIVERSITY

THE METAPHYSICS OF DUGUIT'S PRAGMATIC

"TH

CONCEPTION OF LAW

HE strongest is never strong enough to remain forever master unless he transforms force into law and obedience into duty" said Rousseau,' a truth

which every subsequent system of jurisprudence has implicitly accepted, and explicitly attempted to account for. As a broad base for the rest of their building, the most successful of these systems generally accepted Rousseau's doctrine, too, of a general will toward the protection of natural rights always in a form more or less absolutistic, according to the purposes which the systems were to serve. German jurisprudence, for example, on the whole arrived at an apologia for an absolution as rigid as Rousseau's own, though its derivation of the force of law was based on a theory of individual rights none the less rigid for having been obtained at second-hand through Kant. The classical French jurisprudence started with the assumptions of the Declaration of the Rights of Man only to find itself led by an irresistible logic to the unquestionable and legally final sovereignty defined by the Constitution of 1791. In England the Benthamite theory took authoritative form in Austin with something of the same logical rigor, though British practice and British theory have ever been two different things altogether.

Until the latter part of the nineteenth century, however, the sovereignty of the state, based on the representative relation in which it stood to the general will, was considered to be a dogma necessary to any juristic system. No other explanation of either the origin of rights or the bases of political obligation found any wide-spread acceptance. With the rise of the historical school of jurisprudence, however, the idea of what may be roughly called the Social Compact theory was subjected for the first time to a searching critique which was able, through a

1 Du Contrat social, chap. ii, bk. 1.

new approach to the problem, to force reconsideration of the ideas both of natural individual rights and of absolute sovereignty. At least the beginnings of sociological jurisprudence were laid when the emphasis was shifted from the a priori derivation of laws to their historical origins. The attack there begun on the metaphysical school of jurists has taken several very interesting directions in modern theory and has grown in strength as much as in complexity. It is worth while noting, however, that most legal systems in present application retain the theory of sovereignty as the basis of the coercive power to command and that the greatest jurists of the last decades have numbered among them those who like Jellinek, Ihering and Stammler sought to give a sound philosophical (what M. Duguit derides as metaphysical) base to the superstructures they have reared. Whether realistic or idealistic in temper, these systems agreed upon the necessity of accounting for legal phenomena by a method which contained a priori as well as descriptive elements.

But just as in eighteenth-century France and in the doctrines of Rousseau the intellectualist explanation of the nature of law found its classical statement, so in modern France once more and in the theories of M. Léon Duguit these doctrines meet their most elaborate rebuttal. They are attacked, so to speak, from top to bottom. The classical French jurisprudence rested its entire weight on two pillars and an arch; on the one side. natural rights and on the other absolute sovereignty joined together to support the entire political structure by the arch of a social compact. M. Duguit says that the pillars form an unreal and inadequate support, and he boldly sets about pushing them over without evidencing the least fear of bringing the state in ruins on his own head. Not content with his work of destruction, he goes so far as to attack the foundation of every such system by declaring that a jurisprudence which rests on any metaphysical assumptions whatever is built on sand and cannot in the nature of things remain long standing. The particular metaphysical foundation which he spends most of his energy in wrecking is the doctrine of some sort of general will which expresses itself through the acts of a state-person.

His own doctrine he characterizes as "positive et réaliste." In place of any and every metaphysical conception of rights deriving from relationship of wills, he proposes the fact of obligation (devoir) necessitated by another fact, social solidarity (la solidarité sociale). These notions are not abstractions of an intellectualistic order but, according to M. Duguit, scientific descriptions of social phenomena which act under laws in some respects analogous to those of the biological organism. Not, indeed, that these laws are biological, for they exist only through individuals "conscious of their acts and of the motives which determine them." Still, as biological laws are founded

"the fact that constitutes the organism," so are social norms based on "the fact that is society." Scientific jurisprudence must ground itself on these facts as ultimate and not seek for them a metaphysical apologia about which endless dispute is possible. Social interdependence, with its roots in an organic division of social functions such as M. Durkheim has described in "La Division du travail social", exists as a state of fact independent of our will. That is, at least, in so far as we can treat it scientifically; the ultimate nature of the will about which the philosophers wrangle so tediously and so vainly is completely outside the possibility of scientific enquiry; the most that we are justified in asserting about our acts is that we are conscious of the ends toward which they are directed.

From the outset M. Duguit's effort is to stay within the bounds of scientific method which he has set for himself. This method, as he interprets it, will not permit him to set up ghostly essences behind actual phenomena. The state-person has no more real existence than any other such abstract concept; all alike are qualified by what he calls "the inanimity of the doctrines, whatever they be, which wish to give a philosophical justification of political might. The truth is that political might is a fact which has in itself no character of legitimacy or illegitimacy. It is the product of a social evolution." 3

1 Traité de droit constitutionnel (2ème éd.), vol. I, p. 24.

2 Idem., p. 19.

'Manuel de droit constitutionnel (3ème éd.), p. 23.