Physical Basis of Law
ALMOST EVERYONE of ordinary information understands very well what is meant by the word “law,” but even the most learned jurists, when called upon to give an accurate definition of the term, find themselves at a loss. No jurist has yet achieved a definition of law that does not require the use of the idea of law, either implied or expressed, as a part of the definition. All will agree that the word in its meaning implies a set both of general principles and of particular rules. Upon law what we call rights are founded, and by it wrongs are forbidden; but if we ask the meaning of the terms “rights” and “wrongs” we simply move around a circle by saying that rights are what are legally recognized as rights and wrongs are what the law defines as wrongs. Thus we get back to the place whence we started.
A celebrated judge in this country has defined law as “a statement of the circumstances in which the public force will be brought to bear through the courts,” but this definition makes an immaterial matter the substance of the definition and ignores altogether the idea that a law is a rule.1 Law would exist without public force applied, for long before there were courts there was a great body of law that a man was bound not to violate and that was generally obeyed. The fact is that no one can go any further than to say that law is a part, and only a part, of the now large body of rules that govern men in their relations and conduct toward one another in the social organization to which they belong. Even here we must understand that we include rules which govern men in their relations to the social organization under which they live and that among civilized men law is considered to govern the relations of social organizations toward one another. For this latter kind of law we have the term “international law,” and its enforcement is not made by any court. Rules of law at different times in the past have covered many more human relations than at other times. Generally speaking, the progress and development of law have been in differentiating rules of living that were of sufficient importance to the social organization to be regarded as law, from other rules, once as potent, that have gradually passed into mere social customs.
It is necessary at the outset to lay stress upon the dominating fact of men having always lived in social organizations. It is possibly conceivable that men might have lived as solitary animals, but if they had done so there would have been no laws. The existence of laws presupposes human beings living in a social complex. The science of law, if there is such a science, is but one of the several sciences that are concerned with men living in a social state. Sociology, ethics, politics, political economy, as well as history, biology and psychology, all have a common ground, for they are all social sciences or have social science aspects. They are all more or less related to each other, and all are necessary to a proper understanding of each science. This truth was happily expressed in the oration of the greatest of Roman advocates for the poet Archias—an oration which, as a whole, reached the highest ground ever attained by a lawyer in a forensic speech. There Cicero said that “all the sciences which pertain to human conduct have a sort of common bond and are related to one another by a kind of kinship in blood.”
This fact of living in a social state is the fundamental fact for the history of law. The development of law has been merely one phase of the social development. This legal development has been a wholly natural social process and result, which man could no more have escaped than he could have avoided the compelling force of his physical frame. This truth as to human life having been always a social existence is the basis of Aristotle’s famous deduction, “Man is a social animal.”
So far as the sciences concerned with humanity give us light, men have always lived in society. This means not in the family, but in some social aggregate larger than the mere family of a male and female or females and children. The ordinary idea of human development has been that the family was the original unit, but, as will appear, the evidence to the contrary is so conclusive that it may be considered as settled that a family life was not developed by men until ages after their advent as animals truly and distinctly human beings, though of a low type of mental development as compared with civilized men. Human animals came out of some lower type of animal with the ways of living of creatures who lived in a herd. Man might have had some other kind of mind than he has, had he not been a social animal, but we must accept another fundamental proposition that man’s mind is a social intelligence, and its processes are dictated by the fact that it has been made by the living in a social state and in no other condition. Law is, of course, the result of this socially formed mentality in adapting the race to its physical surroundings, and in striving to overcome those surroundings.
The time has long gone by when one should apologize for running counter to human conceptions that are founded upon human ignorance, inherited prejudice, or crass stupidity. If the purpose were to write a work upon geography, it would not be necessary to begin with an extended demonstration of the sphericity of the earth, although a few centuries ago a man could, with entire legality, have been burned at the stake for asserting such a proposition. Similarly in a work designed to explain the legal aspect of man’s life, it must be assumed that human beings in their mental nature, and the laws as products of that nature, are the result of ages of evolutionary development, in spite of the fact that many honest and sincere people believe such teaching to be criminal and despite the fact, also, that in some parts of the United States such teaching has been made in fact a crime. Curiously enough, St. Isidore, who died A.D. 636, lays it down as undoubted truth that “at first men were naked and unarmed and helpless against wild beasts, without any protection against cold, without any way to preserve heat”; and Alcuin (A.D. 735–804), a great churchman, knew enough to say that “there was a time when men wandered like beasts here and there over the earth, without any power of reason whatever.”
The story of the law must begin, then, with men as they first were in mind and body countless ages ago. Those original attributes of mind and body, inherited from age to age, practically rule men to-day, though generally in a subconscious or instinctive way. Through those many ages the physical frame of man has remained what it was in the beginning, but his mental development is entitled to be considered the most extraordinary phenomenon of organic life. A celebrated apothegm, originally stated in Latin, says that “in the world there is nothing great but man, and in man there is nothing great but mind.” Yet it required many ages to create in man that greatness of intellect, and the expansion of the human intellect is still continuing.
The physical rules that govern our bodily frame are the same to-day that they were in the beginning of mankind, for that physical frame has suffered no change. The laws of generation, birth, nutrition, growth, decay, and death have the inevitability of natural law. Such physical laws are like all other rules which we call natural laws. They are fixed and unalterable by human effort. Violation of those physical laws produces physical results. But human laws have none of the inevitability of natural laws. They may be violated without any physical effect on the violator, for they attempt to make or are a standard of conduct of human beings toward one another. The scientific name given to the knowledge and the doctrine of human laws is “the science of jurisprudence.” Law in this sense is commonly supposed to be the result of human reasoning and of conscious purpose. Yet there was a time, before man had developed the mental faculties necessary to produce consciously purposeful laws, when the rules that regulated human conduct in the social state had all the sureness and inevitability of natural law, for the laws existed merely as customary animal reactions to surrounding conditions.
If, to obtain a better perspective in looking at this matter, we should go back to a time preceding the existence of human beings on the earth, we should find ourselves toward the close of the vast geological age that is called the Tertiary. Nature had then completed her highest and most successful experiment, prior to the advent of human kind, in creating miniature animals suited to live upon this earth in a closely knit social community. In such social communities we shall find the analogies that are most suitable to describe men, who began as mere animals and have lived always in social communities of some kind, and have thus produced those rules of social conduct which we call “the laws.”
There is an additional reason for beginning the history of the law with man’s advent on the
