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The Green Bag

will and public sentiment are the chief means of coercion. Law should follow,

tion of our criminal law and for the decline of respect for the law generally,

therefore, and not precede, changes in social conditions—that is, in the ways of

yet the question may be raised whether

thinking and acting of a majority of the population. Laws which outstrip popu

through inadequate training and through

lar will and public sentiment are notori ously powerless to better permanently social conditions, and in general it may

thing to do with all this.

be said that law is a relatively clumsy

the legal profession in the United States, commercialization, has not had some If we have law in order to preserve a given social order, we have changes in the law in order to bring about adjust

instrument of effecting social reforms.

ments to new social conditions.

All that has been said implies that radical

There

social adjustment must be made through

fore, those whose business it is to change the laws, or to reinterpret the

the influence of education and public

old ones in order to meet new social

opinion, and that law at the most can

conditions, should have the fullest pos sible knowledge of those conditions. We are still without a system of law that is adapted to our new and complex civili zation. Because the legal profession

only come in to enforce the new habits which have already been sanctioned in

popular consciousness. Moreover, it fol lows from all this that law can never represent the moral and social ideal;

for the social ideal stands for the maxi mum which society is aiming at, while the law aims simply to maintain the minimum of morality in conduct which is necessary for the safety of society at any given time. Law is established, then, in its statu

tory and common-law forms for the

sake of effecting a higher degree- of social control and of constraining individuals

that vary from the standards which are recognized as necessary to carry on a collective life. The civil law and the criminal law may consequently be con sidered as two great props which sustain the social order in any nation. Nothing can be socially more demoralizing than when one of these props is weakened.

The weakness of the criminal law in the United States and the general disrespect for law which we ﬁnd widespread in our population is, therefore, one of the gravest signs of social disintegration which confronts the American people.

While the social situation in the United States is undoubtedly responsible for the

present inefficiency in the administra

has often failed to see the social char acter of law, they have sometimes made the mistake of considering law as some thing given for all time, and hence, in

stead of studying the new habits and conditions of society, they have often attempted to apply rigidly old systems

of law with disastrous consequences. For example, the old English common law was adapted, as everybody knows, to a much simpler civilization than our own, yet we have had jurists, even down to the present time, attempt to apply that law to our modern complex society.

To amend or reinterpret the common law so as to meet the needs of the day evidently requires extensive knowledge of the present society. Again, the old criminal law, or as criminologists call it, the classical criminal law, brought about by the reforms at the beginning of the nineteenth century, has proved quite ineffective to protect modern society from crime. This is doubtless not only because modern society is more com

plex, but because the classical criminal law rested upon an unscientiﬁc analysis of the problem of crime; yet only in