Page:The Green Bag (1889–1914), Volume 24.pdf/335

 302

The Green Bag

Students of legal history and the development of political institutions are generally agreed that law is subject to the same developmental processes and that a particular system of law is a product of such processes. It is also recognized by this class of students that a system of law, or even a particular piece of legislation, can be produced by no other means. This fact, however, has not been recognized by the general public, and a large class of political and social reformers has failed to grasp its full significance. The impatience of the enthusiastic advocate of social reform with the slow working of governmental agencies in their efforts to remedy social evils grows out of the assumption that it is possible to devise legislation from a priori reasoning which will be effective for the accomplishment of the desired reforms, if the men in power were only willing to make the attempt and could bring sufficient ability to the task. This assumption is radically wrong and leaves out of the account the fundamental nature of the development of law. A law is a rule of human action or conduct promulgated and sanctioned by the state, and it may be enacted in the form of a constitution adopted directly by the people, a statute adopted by a legislative assembly, a treaty with a foreign nation made by the executive authority, a judicial decision ratifying a custom or extending an ancient rule by interpretation to a new set of facts, or an administrative regulation made under a delegated power. By which ever of these forms the law has been promulgated in the last instance, it is nevertheless a product of the same set of forces so that, for the present pur pose, the form of enactment is a matter of indifference. An analysis of the origin of these rules reveals two sets of factors, the

one conscious and the other uncon scious. The conscious factors consist of the activities of men in studying social conditions and attempting to regulate them through governmental agencies. This group of factors is the more obvious and is the only group which the unthinking take into account. The second group is made up of the great body of natural laws and natural forces which govern man as an individual and men in societies and those laws and forces which regulate and control in organic and lower organic nature. A slight examination of the processes involved will make it clear that the latter group of forces is of immensely greater power than the former group. Man's conscious efforts to regulate and control social conditions can only be effective when they harmonize with the irresistible movements of the forces in the second group. The unconscious social forces constantly nullify and render inefficient all laws based on purely a priori speculations. From these facts it becomes apparent that, in addition to purely jural limita tions, the legislative power of a state is subject to definite natural limitations. These limitations can be defined with certainty only when we have succeeded in classifying the natural forces at work in society and in determining the full extent and nature of their operation. An examination of any set of remedial statutes will give us the general outline of the development of a law. A social condition or a group of social conditions arises which, in the course of time, comes to be recognized as detrimental to society; the recognition of the evil gradually creates a pressure, through public opinion, upon the law making powers for the remedy of the evil in question through governmental agen cies; this results in a rule or a set of