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ASSISTANT EDITORS W. J. Byrne
Miss Elizabeth S. Emmons
Alvo O. Hearne
ASSISTANTS IN CIRCULATION
Miss Constance N. Fogle
Miss Blanch Kearns
FACULTY ADVISORS Prof. Theodore Peyser
Dr. Albert H. Pucney Prof. Frederick P. Myers Prof. Hayden Johnson Hon. Henry R. Rathbone, M. C.
FOREWORD Due to the medium employed for its publication, and the author's relation to it, some prefatory remarks are here considered proper, which otherwise would have been dispensed with as unnecessary. The particular viewpoint from which the subject is regarded in the accompanying paper is that of the universality of the hypothesis known as the Doctrine of Evolution. Confining itself, as it does, to the purely phenomenal world, there is nothing intrinsic to the hypothesis which interferes with a reverent belief in a First Cause. The discussion of the free will element in the law involves a denial of special providences and special acts of creation. Moral obligation, which is inclusive of legal obligation, is put upon a different footing. It will be noted, however, that the result of the readjustment is to broaden and deepen individual responsibility, both legal and moral, rather than to whittle them down by the sentimental and scientifically unsound theories and practices, which, in the opinion of the writer, at least, are to no small extent responsible for the contempt into which the law is rapidly falling. When old moral sanctions are confronted with growing disbelief, the time has surely come when the former should be re-examined and the necessary adjustments made.
The self-preservation of society demands that anti-social conduct should be discouraged and prevented. To the accomplishment of such an end it is imperative that the law should represent the opinion of twentieth century society as to what constitutes anti-social conduct. No amount of extending, refining, distinguishing, or reasoning from analogies, real or fancied, can fashion the beliefs and practices of a primitive, or even of a medieval people, into a workable system for our present day enlightened and complex civilization. Beliefs and opinions, from the narrow legal point of view, are on the one hand regarded as unimportant except so far as they result in overt act. Yet on the other hand, as will be seen, responsibility for the overt act is at present determined by, and increased or diminished, according to the supposed knowledge and reasoning powers of adult criminals. And Society is thus feebly protected from just that type of evil doer which constitutes the greatest menace to its safety.
In seeking the cause of this anomaly we may find, in the field of law, as has been found in so many fields of human interest, that much of practical importance can be expected to result from a reexamination of ancient but unsound formulas. It is not the purpose, however, of this inquiry to attempt such a re-examination. Nor is it offered to teach, to prove or even dogmatically to assert any single proposition. Its purpose is to suggest the application of a method to be employed in the investigation of positive law. It is not believed, as seems tacitly to have been taken for granted, that the group of phenomena we class as positive law constitutes a thing apart from human knowledge generally. The problems of its genesis and development are admittedly complex but not therefore necessarily insoluble. Until a partial solution is offered it is of course idle to
speculate upon its future. The scope of this article is therefore to inquire into the status of the positive law as a branch of human science; to inquire as to why it cannot at present be so classified; how in a general way such a science may in the future be built up; and, finally, by an attempted illustration limited to a particular, narrow field of positive law, the basic criminal law, to point out some practical changes in viewpoint that might be expected to occur, if the generalizations_familiar in the other sciences were applied to the dogmas of the English and American common law. As has been said, the approach will be made from the viewpoint of the Doctrine of Evolution, which as a hypothesis, and independently of its complete adequacy or verity, has given such an impetus to the scientific investigator in other fields of human interest.
The content of the paper, which it has not been attempted to arrange in any methodical subdivisions, concerns itself with the suggestion of answers to these several questions: Why is there no science of the law, is such a science possible, by what method should an attempt to erect the law into a science be pursued. Included in the discussion may be found an attempt to illustrate, in the case of the criminal law, which is selected more or less at random for the purpose, on account of its human interest appeal, the kind of readjustment of viewpoint we might secure from a scientific or philosophic discussion of accepted legal dogmas.
The question is often asked as to whether there is, except potentially, a science of the law. It is regrettable that the answer must take the form of an unqualified negative. Knowledge of any subject matter is raised from the common and ordinary to the scientific only when, in addition to an intrinsic classification of its included phenomena, the latter have been further classified, in time and space relations, with others of the same class or type. In widening circles of investigation they must again be compared with all other phenomena, to which they bear a not too remote relation, to the end that the most general laws by which they appear to be governed may be discerned and understood, and the trend of their development predicted and controlled.
With one notable exception, the phenomena of the law seem to have been made the subject of nothing more scientific than an intrinsic classification. To this may be added the collection of data as to their chronological order of development. Even a mere historical investigation, confined to this one group of social reactions, is not without value as paving the way for something better. To convince a court as to what the present state of the law is, it often becomes necessary to trace to some extent its historical development, but that such a process involves the application of science or of scientific method, as those words are used broadly in connection with the investigation of cosmic phenomena generally, may be denied.
It is true that a less partisan and more impersonal, and therefore more scientific, mode of investigation is sometimes adopted in connection with the pedagogic exposition of the law. In such work there is opportunity for improved classification, and a not unscientific, critical faculty may be brought into play, but, even so, these constitute hardly more than the merest beginning of an effort to evolve a real science of the law. The gathering of specimens, of various degrees of antiquity, including those that correspond to the fossil remains of extinct species, and arranging them in treatises, is of little value, unless they can be studied in connection with the environment which produced them and in a search for the law of their genesis. Like other phenomena they can be studied profitably only in
""Ancient Law" by Sir Henry Maine,
connection with other more comprehensive groups, and with the aid of antecedent generalizations of presumably universal application. A general law of biology for instance, such as the relation between the ontogenetic and phylogenetic series, may be extended to include, and has been found valid for, embryological development of kind. So an established formula of human psychology may, perhaps, prove the opening wedge to the most important discoveries of those human activities which we class under the names of morals, politics and law. Aimless investigation in any field is hardly likely to achieve valuable results,
An effort will be made hereafter to illustrate, suggestively at least, even if not by way of complete demonstration, that some perhaps rather startling consequences to well accepted legal dogmas may arise by testing them in the light of generalizations as broad, say, as that of the law of causation, or as the physical law of the conservation of energy. We may find that the generalization that forces follow the line of least resistance and greatest traction, being universal, applies with equal force to psychic as to external phenomena. We may find, if this last statement be correct, the result of its application in the field of criminal law, for instance, may require the abandonment of many very firmly established conceptions of the common law.
By some brief excursions into kindred fields of human activities, especially of those broadly grouped as sociological and psychological, we may find the answer to the further question, not merely is law a science, but as to why so little effort has been made toward its study along scientific and philosophic principles. The answer is not to be found by merely emphasizing the baffling complexity of the subject. The scientific spirit recoils before no task. It has simply happened that up to the present time those best acquainted with the phenomena of the municipal or positive law have approached it exclusively from the viewpoint of, and with purposes limited to, the art of advocacy or of pedagogics. The lawyer has rarely been a scientist, nor the scientist a lawyer. Indeed the spirit underlying detached, impersonal and critical investigation is so incompatible with that of partisan casuistry, engendered by legal training and practice, that they are almost mutually exclusive. And there