Page:The Green Bag (1889–1914), Volume 22.pdf/606

 The Sociological Foundations of Law By CHARLES A. ELLWOOD Paorassoa or SOCIOLOGY, Umvaasrry or Mrssouar

T is certainly an encouraging sign that the late Hon. James C. Carter, in his valuable lectures on “Law: Its Origin, Growth and Function,” recog nized at the outset that the subject he

was dealing with was a part of the ﬁeld of sociology. When an eminent lawyer and legal thinker takes such a position, it is perhaps time to emphasize that the

which deals with the principles of social organization. It is evident, therefore, that it deals with the foundations of legal science, since we can not under stand any given system of law unless

we understand the principles of social organization which give rise to it. When we study legal texts or legal codes we discover that they always pre

foundations of the science of law, or

suppose some theory of society.

jurisprudence, must be laid in a gen eral knowledge of human society, and especially in a knowledge of the prin ciples of its organization, development and functioning. Of course, those who are content with the mere knowledge of the law as a set of separate rules, or as a system of rules, will have little

the very earliest Roman law presup posed the religious view of social organi zation which was inherent in ancestor

interest in any inquiry into its founda tions in other sciences. But has the time not come when the study of the law should be freed from superﬁciality and isolation and be based upon knowl

dominated the bulk of legal thinking,

edge of its nature, function and purpose

in human society?

It is the thesis of

this paper that a proper understanding of law and of legal theory can only be

obtained through the study of the social sciences, especially sociology; and that training in law should always be pre

Thus

worship zmd the patriarchal family. Later Roman law, on the other hand, rested on the assumption that the social

order was a matter of “contract";and

this “contract theory of society” has and even of legal practice, down to recent times, although we may note that through the inﬂuence of the Church in the Middle Ages the supernatural theory of society and the conception of law as a divine command for a time again dominated. The very deﬁnition of law, as legal writers have discovered, involves some theory of social organization; and deﬁni tions of law accordingly vary according

ceded by training in these sciences.

to the writer's conception of the nature

For the law is not something apart from the rest of our social life, but rather

of the social order. Corresponding to the supernatural conception of society,

is that aspect of it which expresses

we ﬁnd the conception of law as a divine command, or the expression of divine will. To the contract theory of society

organized public control over the whole. In other words, law has to do with the

organization or order of society, and it is for the sake of maintaining a given social organization or social order that law exists. Now, sociology is the science

corresponds the conception of law as an

agreement or rule by which a majority “covenant" to regulate their relations to one another, leaving questions to be