Page:The Green Bag (1889–1914), Volume 19.pdf/31

 THE GREEN BAG

12

THE

MODERN

CONCEPTION

OF

ANIMUS

By Brooks Adams 1 APPREHEND that law is not a science environment caused by mechanical inven in itself, in the sense that it is not a self- • tions. developing growth springing from certain If we are to comprehend the weltering immutable principles of justice. Law, on mass which we call the modern law we must the contrary, expresses a resultant of social seek the true and not the conventional forces, these forces being effects of the pres causes of which it is the effect. These sure of an environment upon any given com causes, in my judgment, are external social munity. Environment shapes competition conditions constraining the human volition. in all its various forms, and environment, In the volition, when stimulated by the en therefore, molds the human will. vironment, we have not only the energy Were an environment constant a single which enunciates the law, and afterward dominant class, suited to its requirements, enforces it, but we have the element upon would, perhaps, be evolved, and that class which the law operates. It is the volition, might enunciate a consistent legal code, be as the cause of all our acts, which the law cause nothing would deflect its will from punishes, restrains, or interprets, and it is the path of self-interest. But as all nature is the quality of the volition upon which the in ceaseless change, the will of no class is law acts which determines the categories ever unopposed, and this opposition becomes into which the corpus juris is divided. As complex in proportion to the complexity Lord Hale said above two centuries ago, of civilization, and the multiplicity of con "For it is the mind that makes the taking flicting energies. At length, in an intricately of another's goods to be a felony, or a bare organized society, like our own, these trespass only, but because the intention energies so conflict as often apparently to and mind are secret, the intention must be neutralize each other. Then bewildering judged by the circumstances of the fact." Pleas of the Crown, I, 508. contradictions ensue. Some twenty-five years since, Mr. Justice Meanwhile the human mind, because of its mechanism, acts under limitations. One Holmes wrote a most learned and brilliant limitation is that it cannot conceive of an book to prove that, "The law has nothing to do with the actual state of the parties' effect without a cause, and therefore law yers are constrained to assign some cause minds. ... It must go by externals and for the phenomena presented by the law. judge parties by their conduct." The Com Following the path of least resistance, they mon Law, 309. From one point of view this statement is take refuge in precedent, and suppose as the cause of each judicial decision some incontrovertible since we can become con preceding determination from which the scious of nothing save through the senses, one in question may be deduced by logical whether the subject of which we are con reasoning. Unless I err profoundly, the scious be the mind of another or the action economist might equally reasonably attempt of which that mind is the cause. It would to deduce the prices which rule to-day from have hardly been necessary to write a book those which ruled last year or last century, to prove this truism. But if the words be without considering the modifications of the taken in their popular signification, I con