Imágenes de páginas

fore, with the very notable exception already mentioned, few even of those qualified as legal historians, or for scientific research into legal phenomena, have broadly conceived of the latter as consisting of anything more than the texts and decisions which have been unearthed and reexamined. Little serious attempt, except in this limited and legalistic manner, has been made to investigate the phenomena of law as an effect of the general process of evolution, although it is conceded that subject to it and under it all social as well as other phenomena have gradually evolved. Thus the investigation of these social activities has lagged behind the efforts which, when applied to the whole domain of phenomena that lie outside of purely human activities, have been crowned with such startling and triumphant success.

Again the homocentric idea of the universe still dominates the legal profession, and colors the views of those otherwise best qualified to put the law on a scientific basis. This proud fallacy long constituted a barrier to the acceptance of the doctrine of evolution with respect to Nature, as it is called, in its entirety, although gradually it had to be abandoned by men of science in favor of the evolutionary view. Almost universally the opinion prevails among lawyers as among those generally lacking in scientific knowledge, that man by the exercise of his free will can control his own and the actions of others; and that there exists, external to man, some vague but compelling principle of Right and Wrong; and that in many important particulars the laws of men are but auxiliary to a set of divine laws, which have existed from all time, and will continue to exist unchanged for all time; and, finally, that the function of the court is to act as a kind of vice-regent upon earth to punish men for their voluntary resistance to these divine and eternal precepts. This conception may of course be a true one, but if it is a true one it involves a denial of the universality of the process of evolution. It rests upon conceptions more or less anthropomorphic of a deity, who, however little he may appear to concern himself with the ordinary physical, chemical, and biological phenomena, is still conceived as ruling the world of men in detail by special providences, and as creating in man the godlike quality of unconditioned Will or freedom from the law of causation.

Even among thousands who accept with the least reservation the universality of the process of evolution it is not uncommon to find those who, in thinking of an environment, think of it as they do of nature generally. That is they think of it as embracing all phenomena with the important exception of the presumed voluntary acts of the individual man. In other words, man is pictured in the godlike posture of changing, and thereby voluntarily recreating, his environment and the environment of others. These activi

. ties are regarded as a thing apart from all the other forces of nature, although, according to the hypothesis, they must invariably be produced as the result of the operation of some cause or causes. In turn these very causes must operate according to laws, sometimes known and sometimes unknown or inadequately known, which we call laws of nature. These, admittedly susceptible of being partially known or, at the very least, of being investigated, are freely conceded to control all of the activities of animate and inanimate nature except the law making and state making activities of the highest order of primates.

Perhaps the most interesting single fact involved in the doctrine of cosmic evolution is that while it operates outside of man, and on his external environment, and in obedience to general laws existing extrinsically to him, it has also operated upon him in the development of consciousness and has stimulated him not only to conscious adjustment to a changing environment but to a conscious effort himself to effect changes in his environment which he considers beneficial to his survival and further progress. Thus external environment acts upon man and he reacts upon it. The aggregate of these actions and reactions are the effects of antecedent causes, and the antecedent cause themselves of further effects. And so on indefinitely the march, which began when life first evolved upon the planet in its simplest form, continues with ever growing complexity and grandeur.

Every known fact, however, in every field of human knowledge forces upon us the conclusion that, however we may conceive or try to conceive of the Playwright who stands behind the scene, the actors are no more responsible for their lines, and the gestures which grow out of and accompany them, than is the stage setting the result of a voluntary act of self-creation. Who denies the law of causation denies not only God as Cause but the Universe, including man, as Effect.

Once admitting that man-made laws are not merely a growth from other laws of lawless human contrivance, but are the result of man's necessary effort to keep himself in adjustment with his environment, including of course in that term his social environment, a beginning at least might be made in the investigation of the natural laws and conditions under which these phenomena have arisen and under which they have evolved or progressed.

In such an investigation every science would be drawn upon, those more closely allied first, of course, but excluding none the contributions from which might be admitted profitably. Those who dedicate themselves to the gigantic though fascinating task of investigating the genesis of positive law, and the natural laws in accordance with which those internal and external activities of human beings are carried on which result in society formulating at any given time or place any particular type of law or custom, will have to seek the aid of many sciences which are grouped around man and his biologic and social history. Indeed anthropology, ethnology, psychology, etymology, comparative religion and politics and law, the sciences which deal with phenomena of trade and the distribution of wealth, may all have to be drawn upon. Even so apparently unconnected a group as that embraced in climatology may make its contributions. While Montesquieu may have over emphasized the effect of climate upon political institutions, his Spirit of Laws well illustrates how valuable may be the result of investigation undertaken from novel points of departure. Even so called destructive criticism, such as that of the trenchant Bentham, is of no small value. The wrecker must precede the architect of a new structure upon an already, but badly, improved site. In this almost untried field of investigation the method also might be adopted which has proven such an aid and stimulus in the development of other sciences. Points of departure might be found in those great generalizations which form the goal of philosophy, and which, being based upon the observed order of all phenomena must, according to the hypothesis, prove equally valid with respect to that particular subdivision which we classify as legal and political.

It may not be impertinent here to remark that the writer makes no pretense either to qualifications or abilities adequate to accomplish fruitful results in so arduous and complex an undertaking. Nor in the brief attempt which follows to give one illustration, out of a possible many, of a novel viewpoint engendered by what may be termed a scientific or philosophical approach is any implication justified which would contravene a Theistic explanation of the ultimate beginning of cosmic activities. Implications must be considered, however, in the illustration attempted below which are at variance with a general belief, prevalent in an earlier period of mental evolution, in an anthropomorphic deity who presides over the world as a blindfolded goddess, holding scales in one hand and clasping with the other the sharp sword of punishment.

One of the impediments to our readjustment of viewpoint lies in the faulty implications of the words which must be used, unless a new terminology is to be invented. Thus, to proceed with our promised illustration, the criminal law undertakes to punish transgressors in accordance with the supposed ability of the transgressor to distinguish between right and wrong. Our first difficulty lies with the implications involved in the use of the word punishment. In a more primitive state of society it was the universal belief that every evil consequence of a maladjustment to the environment was a punishment inflicted by some outraged deity personifying the particular force of nature which manifested itself. The primitive idea was that the gods who personified external nature punished, the modern idea is that external nature reacts. No one now believes that the cyclone which blew down his barn was the breath of Boreas indignant at some fancied slight. The least educated yokel will agree that the wind did it. And he will accept your explanation if you tell him the wind was due to colder and heavier air filling the space but partially occupied by the warmer and lighter air, and that his barn was in the line of least resistance, and not being better adjusted to this changed environment, to wit, the increased and unequal pressure upon it, it failed to survive as a barn.

The idea may yet generally prevail that society, forming a part of the totality of what we call nature, also reacts, and that its reactions, like all other natural reactions, in the biological field at least, are evolutionarily generated and are no more uncaused or voluntary, in the theological sense of the word, than are the reactions of individual members of society, or the barn to which we have just referred.

It was to be expected that man in the evolution of his ideas, having reached the point where he created anthropomorphic deities and clothed them with his own qualities, simply exaggerated in degree, should later, when he began himself to perform the functions he had attributed to his deities, suppose that he acted in a similar if less authoritative manner. So having attributed his ideas of justice and of punishment to the deities of his creation, he easily fancied later that the justice and punishment, which he undertook to enforce in his organized social state, was of a divine character, and not merely an inevitable reaction, in a developing social environment, through which reactions alone society could survive and the evolutionary process be continued.

Again it may be important to inquire as to what is meant by Right and Wrong, and the supposed ability of individuals to distinguish between them. Apart from the belief in a direct supernatural revelation, one must look for the origin and meaning of these terms in man's conscious attempt to adjust himself to the social conditions which best preserve the species and best promote its progressive development. Right is not therefore an external measuring rod, but represents the opinion of organized society as to the sort of conduct which best promotes its interests, and of course that is wrong which in its opinion is detrimental to the prosecution of this purpose. Right is, of course, not might, on the other hand as it represents the prevailing opinion of society there is apt to be might behind it. Right is, of course, here used as a qualification of conduct and not at all as a term synonymous with Truth. Wrong is the antonym of Right. To predicate of a man a knowledge of right and wrong in any given particular is to affirm that he is aware of the opinion of the social group which controls his actions. He is a good man or a bad man or criminal just to the extent he is influenced by this knowledge to conform his conduct to this opinion as it is reflected in the

« AnteriorContinuar »