578
The Green Bag
sociological principles upon the law is
at once invoked to regulate the trust
evidently this: namely, that law is one of the chief means of social control of
that is, to make it conform its activities
individual conduct.
group.
While it is not
the only means, still perhaps it must be regarded as the most important means because it deals with the overt acts of the individual, and has back of it the
whole force of society.
We have law
advantageously to the life of the whole The coercive character of law, there fore, does not spring from the fact that it is the imposition of the will of a strong individual or class upon a weak indi
in society, in other words, because soci
vidual or class, but rather it springs directly from the coercive and compell
ety feels the need of controlling indi
ing nature of all social organization.
vidual conduct in order to preserve its organization. Every social group is in actual or potential competition with
cive in some degree if it is to assure the
every other group as well as constantly struggling with the forces of physical nature. Defense against enemies is at the foundation of every life-process, whether individual or social; but inas
much as we cannot have effective collec tive action without internal order and harmony in groups, it is evident that the need for internal order is co-ordinate with the need for external defense. Every group must exercise, there fore, constraint upon its individual mem bers; and the need of this constraint be comes greater the larger and more com plex the group is, because in complex societies there is greater opportunity for individual variation between the habits of different individuals. Therefore, social constraint becomes increasingly neces sary to carry on an increasingly complex collective life. Instead of law lessening with social evolution, then, it is bound to increase in amount and also in rela tive importance to the life of the group. As each new condition in the social life arises, some means of social regulation and control has to be found, and usu ally the most simple and direct means is through the law. Thus, when mod ern industrial evolution produced the “trust," because this new form of asso ciation had to be controlled in its con duct in the larger social unity, law was
Every social organization must be coer welfare and survival of its members. Social groups, being a mass of self conscious individuals carrying on a com mon life together, enter therefore upon
deliberate policies to prescribe and con trol individual conduct in ways of social advantage. In very large social groups, of course there are always individuals who vary in their habits beyond the limits which are judged necessary for group safety. In primitive groups such anti-social conduct was punished by the
spontaneous resentment of their mem bers, but as government became organ ized more and more the work of main taining social habits or customs judged necessary for group safety was turned over to it. Hence the law became the
conscious instrument by which society enforced its will upon its individual members; but it is evident that law even
in its most evolved forms is closely con nected with the forms of social constraint and social control which we find even in the most primitive groups of men.
The insufficiency of the “contract theory” of law and of society must now be manifest. The contract theory pre supposes that every individual is an inde~ pendent, self-sufiicient unit in society, and that he regulates his relations to
others by contract-—that is, by agree ment to do or not to do certain things. This theory presupposes that practically
