So much for the fallacy of logical form. Now let us consider the present
condition of the law as a subject for study, and the ideal toward which
it tends. We still are far from the point of view which I desire to see
reached. No one has reached it or can reach it as yet. We are only at
the beginning of a philosophical reaction, and of a reconsideration
of the worth of doctrines which for the most part still are taken for
granted without any deliberate, conscious, and systematic questioning
of their grounds. The development of our law has gone on for nearly a
thousand years, like the development of a plant, each generation taking
the inevitable next step, mind, like matter, simply obeying a law of
spontaneous growth. It is perfectly natural and right that it should
have been so. Imitation is a necessity of human nature, as has been
illustrated by a remarkable French writer, M. Tard, in an admirable
book, Les Lois de l'Imitation. Most of the things we do, we do for no
better reason than that our fathers have done them or that our neighbors
do them, and the same is true of a larger part than we suspect of what
we think. The reason is a good one, because our short life gives us no
time for a better, but it is not the best. It does not follow, because
we all are compelled to take on faith at second hand most of the rules
on which we base our action and our thought, that each of us may not try
to set some corner of his world in the order of reason, or that all of
us collectively should not aspire to carry reason as far as it will go
throughout the whole domain. In regard to the law, it is true, no doubt,
that an evolutionist will hesitate to affirm universal validity for his
social ideals, or for the principles which he thinks should be embodied
in legislation. He is content if he can prove them best for here and
now. He may be ready to admit that he knows nothing about an absolute
best in the cosmos, and even that he knows next to nothing about a
permanent best for men. Still it is true that a body of law is more
rational and more civilized when every rule it contains is referred
articulately and definitely to an end which it subserves, and when the
grounds for desiring that end are stated or are ready to be stated in
words.
Public-domain text, read in full here on John Shaqi.
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