and of conduct toward one another. But with man it has not been so, for man’s mentality in the long ages has suffered a great development.
Man began as an animal, responding merely to his surroundings, and the fact that he so began has led the Behaviorists to assert that such he has always remained. Their favorite thesis is that the individual man to-day is just what society has made him. This is true in a measure, but since man became civilized, the exact converse is shown to be true by the history of the law. Society now is what the individual man is making it. Somewhere in its development, by gradual and imperceptible degrees, the animal man passed from the stage of a brute wholly obedient to its circumstances and surroundings, to that of a being who, by his own purposeful mentality, could so alter the impact of his surroundings upon himself, that he could rise above the external world of the senses into the realm of the inner life of the spirit and could make it true that human society will become what the individual shall make it. To quote George Sand, the ideal life will become man’s normal life as he shall one day know it. If it be said that this change of mentality is a mystery, the answer is that the change in mentality can be traced, that it is not nearly so great a mystery as the initial change from inorganic matter to organic life, that beginning of life in which all are compelled to believe. Human society has been altered and will continue to be altered and to be made still better as men continue to rise higher in the realm of that inner life of the spirit. The world of thought, the world of dream, and all the past and the future will become the possession of more and more men.
We can anticipate that man will never become like the ant, perfectly law-abiding and perfectly fixed in his obedience to the rules of his social life, for should that day come man would be incapable of improving his rules of life and incapable of progress. Yet this does not mean that progress lies in violating the law, but rather in the capacity to alter the law. It will always be true that the highest type of man will be the one who recognizes his duty to obey the laws, as witness Socrates who without compulsion or necessity, even probably against the desire of those who had condemned him, went confidently to his death rather than disobey the law.
Pope in his well-known lines asks a question and answers it:
Why has not man a microscopic eye?
For this plain reason, man is not a fly.
And if we ask why man has not developed a set of laws that all men instinctively obey, without question and without faltering, the answer is the plain reason that man has left that stage behind him. He has all of the intelligence of the ant but he has one infinitely higher attribute, that puts upon him certain evils, but at the same time opens to him an endless heritage of progress.
Every act of the ant is purely instinctive. She acts as she does because she cannot act otherwise. She has no choice. Human beings also have instincts. The great mass of our daily acts is purely instinctive, the experimental psychologists now tell us. Some of those instincts have improved and grown better with the improvement of the race. Our emotions of fear or bravery, of pity or harshness, of sympathy or ill will, of envy or generosity, of love or hatred, are not reasoned conclusions. When we are moved to tears or laughter, when our hearts glow and our eyes shine at hearing or reading of noble and heroic deeds, when we feel keenly the suffering of man or beast, when our minds are touched to generous compassion, we feel and act by instinct. Love for our parents or family, love of the home in which our eyes opened to the light, faithful affection for the streets over which our childish feet were led, and love for our country whose flag floating in the air is an inspiration and an undying hope, no less come to us by our instincts.
At the same time our self-assertion, our greed, envy, and covetousness, our feelings of self-interest and selfishness, our lowest attributes of sensuality or lust, all the influences of the body on the mind, are no less instinctive. Men mainly differ in the extent to which the intellect commands these instincts that have been inherited from the savage. Had men remained the creatures of merely instinctive intelligence they could doubtless have peopled the earth; they could have developed communities of a high order living under an absolute law reigning over individuals who would never violate the law. They would have developed a stability of institutions and thereby have become incapable of progress. But man has developed a higher type of mind capable of infinite expansion and of overcoming natural surroundings, and has thereby become able by his own purposeful exertions to keep constantly mounting to higher realms of existence.
While the communists have made an impossible application of the lesson of the ants, it seems possible that some philosopher, calling himself a jurist, as philosophers have the hardihood to do, thinking on the problems of social life as developing rules of law to govern the conduct of individuals toward one another, might have hit upon the inference that men must once have lived in a condition when they, too, would be as helpless in the grasp of their rules of social life as are the ants. If men had remained without any reasoning power whatever, they would have been helpless to change. The philosopher Hobbes, who claimed to be a jurist, once cast his eye upon these natural communities of ants, at a day before the evolutionary conception was at all understood. But Hobbes was definitely committed to the dogma that human law is a rule imposed by a superior ruler upon an inferior subject, and that not nature but authority creates law. This dogma long made jurisprudence a nightmare. Hobbes at once dismissed the ants as being wholly useless for a jurist’s investigation. No doubt he saw that the polity of the ants entirely refuted his theory of law, and it was too much to ask of a philosopher that he should abandon his theory out of a regard for facts. The fact, however, remains that a large part of the law has always been dictated by natural causes and much of our jurisprudence is and must remain, however we disguise it, as inevitable as the jurisprudence of the ants.
How much more inspiring it is to believe, as the story of the law proves, that the creature man has achieved his own destiny! Grant that he is obedient to natural laws so far as he must be, yet as a docile echo of those laws, by the force of reasoning power alone, he has steadily rounded and continues to round the vast orb of his fate. No one can look at the story of the law and not be a firm believer in the future of the race. The informed lawyers, in spite of their often gloomy views, must be the true optimists. Legal history teaches that the science of jurisprudence, without which progress would have been impossible, is not the work of the few but of the many, not the work of lawgivers or of great men, but the steadily and silently built structure of voiceless millions, “who bravely led unrecorded lives and dwell in unvisited tombs.”
It is a sound corrective to our thinking to remember, in the words of a great scientist, that “what we are is in part only of our own making; the greater part of ourselves has come down to us from the past. What we know and what we think is not a new fountain gushing fresh from the barren rock of the unknown at the stroke of the rod of our own intellect; it is a stream which flows by us and through us, fed by the far-off rivulets of long ago. As what we think and say to-day will mingle with and shape the thoughts of men in the years to come, so in the opinions and views which we are proud to hold to-day we may, by looking back, trace the influence of the thoughts of those who have gone before.” It is in the history of the law, far more than in any other social science, that we catch from its very beginning the great corporate life of humanity which has made us what we are.
AFTER THE EARTH PASSED from the Tertiary Age into what has been called by some the Quaternary Age and by others the Pleistocene, there came upon the earth this new type of animal, homo primigenius, which was to have such a marvelous career. There were certain things about these new animals that gave promise. Their ancestors had passed their lives in the trees, a habitat retained by certain men in New Guinea to-day who are enough advanced to use the bow and arrow, but such life for men of the present is a reversion. The first human beings had definitely abandoned the trees and had come down to the earth. The hands of their hind members had
