Page:Popular Science Monthly Volume 5.djvu/619

Rh society which are both possible, if not both true, and that the existence of a Science of Law follows as a necessary consequence of the adoption of one conception, but does not follow from the adoption of the other. It may be said, on one theory, that the composition and action of human society, as exhibited in the state, are due to nothing else than the aggregation and mutual repulsion of a number of independent and self-conscious atoms which, by a gradual process of experience, have discovered that the largest measure of individual well-being is solely attainable through certain special modes of coöperation. These modes of coöperation take a variety of forms, but the most signal and important are those implied in the facts of government, ownership, the composition of the family, and contract.

According to the theory now under review, every one of these facts is merely a device for carrying out ends believed to be beneficial. The facts might be made to vary indefinitely, and it is alleged to be conceivable that any one of them, and perhaps every one, might be absent altogether and a new set of devices take their place. It is held to be possible that the devices themselves will, at no remote period, be discovered to be rude and insufficient, and that many superior substitutes could be found for them, even if they do not already exist in certain societies, the constitution of which is as yet unexplored. The machinery by which each one of these classes of facts is called into being, and made to subserve its end, is physical force, taking the form of what is called law. The physically stronger part of the community compels the weaker to obey a certain form of governing authority, to recognize certain descriptions of ownership, to conform their lives to certain canons of domestic life, and to observe certain regulations of the market and the exchange. The rules, indeed, enforced by law are, for the most part, so transparently beneficial to all concerned that the pressure of law becomes very slightly felt, and the physical force which supports it is comparatively seldom called into play. Nevertheless, in the theory now being enunciated, force is not only present, but the main originator and upholder of every portion of the fabric of social order. It is obvious that, according to this view, there can only be a Science of Law in a very restricted sense. In the largest sense of the expression there can be none. Instead of law having any precise and determined character impressed upon it and upon its operation, through the existence of a certain number of immovable social institutions, which react back as effectually upon law as law acts upon them, these institutions are nothing more than the creations of law itself, or rather the accidental shadows which law happens to cast.

The opposite theory of society starts with the conception that society is not developed through the conflicting passions of individual atoms striving to organize themselves after a fashion which shall best promote their own well-being, but is from first to last a subsisting organization made up of constituent groups reciprocally acting and