Page:Harvard Law Review Volume 10.djvu/514

488 form in the change from one generation to the next, and historical unity would be impossible.

From these considerations, it follows that human beings to exist at all in a social body possessing a unitary form must exist according to some principle of unity apart from their volition and yet affecting it. It must be a principle relating free activities, but not necessitating their action. The difficulty is to reconcile such a principle with the freedom of the activities which it relates. It must be on the one hand universal, and on the other consistent with the possibility, in fact the actuality, of non-conformance. On the one hand, if it were not universal, it would be only occasional, and not therefore a general principle at all, and on the other hand, if conformance were a necessity, there would be no freedom in the individual. The reconciliation of these two can be found only in a universal principle, non-conformity to which is possible, but conformity to which is obligatory, that is, in a law, not of necessity but of obligation. Whatever, therefore, may be the unitary principle of society, it involves an obligation of obedience, without which society is but a meaningless name.

In the foregoing discussion of necessity and obligation, it is to be noted that the argument falls short of actually proving the existence of either. It succeeds, supposing it to be valid, in showing only that necessity and knowledge of the universe as an existent reality on the one hand, and obligation and knowledge of society as a unitary body on the other, are inseparably connected terms, and that if one term in each pair is true, the other is true also. Now, as a matter of fact, both the knowable reality of the external universe and the unity of society except as a mere social compact have been denied, the former by certain despairing philosophers whose sect is not even yet extinct, and the latter by the early sociologists whose theories are at the present time substantially rejected. To discuss these problems is not within the province of jurisprudence, and I shall assume, therefore, without argument, both the reality of the universe and the unitary character of society, and hold them as proof of both necessity and obligation. But more than that: they constitute, like rationality and freedom, the necessary postulates of jurisprudence as a science, without which it cannot exist except as a figment of the imagination. If human beings are not causes, they cannot be juridically responsible for any effects. If they are not united in bonds other than those