The Sociological Foundations of Law

decided by some commonly selected authority. Answering to the theory that social organization is a result of force, or of the rule of the strong over the weak, is the conception that law is solely based upon force, or, to use the Sophists’ phrase, is “the rule of the stronger." All of these theories of society, however, on which the legal theories and systems of the past have been based, are some

law.

577

It is only saying that sociology,

rather than these sciences, reveals the foundations _of law—that is, its origin,

nature and function in human society. What light, then, can sociology throw upon the foundations of law? Some of the simpler facts of theoretical sociology may serve to suggest an answer to this

question. No society can continue to exist without uniform practices and

what antiquated today; and only within very recent years do we find legal theories

habits of life.

based upon the newer organic and psy

sible without some degree of collective

chological conceptions of society. It is evident that a sound theory of the nature and function of law must rest on sound views of human society. Political science and ethics have both

control. This means that social control is characteristic of all societies whatso

been put forward at various times as the foundation sciences for law. As for the claims of political science, it must

be said that law antedates the state as we understand that word, and that government, so far from being the origi nal source of law, is simply the means of

enforcing law.

Group action, except

perhaps in its simpler forms, is impos

ever. Consequently in human groups, with their self-conscious units, we get

conscious and deliberate attempts to control the activities of the individual. Human society, therefore, from the first

presents the phenomena of authority and of social discipline. If an individual varies too greatly from the standards of his group, if he refuses to co-ordinate his activities in harmonious ways with

Law and government

the members of his group, then the

are rather co-ordinate expressions of the

group to that extent sufiers disorganiza tion and impaired efliciency. Every

tendency of all social groups to regulate the conduct of their members in order

social organization must be coercive,

to preserve their organization and their

therefore, to the extent necessary for

existence.

The science of government

and the science of law must both accord ingly rest upon a knowledge of the nature of social organization.

As to the

claims of ethics to be considered the

efficiency.

This means that individual

impulse must be subordinated to social needs; hence the individual is surrounded

from childhood to the grave with stimuli of all sorts, though chiefly in the way of rewards and penalties, to get him to

science fundamental to law, it need only be said that ethics, as the science of right conduct or of right living together, itself presupposes sociology; for we can

says, “The creation and perfecting of

not know the ideal in conduct until we know the remote social consequences of

and character by means of discipline,

conduct, and we cannot know these consequences unless we understand the laws of social life generally. All this is

has been the work upon which society has directed its conscious eflorts from the beginning.” ‘

not saying, however, that political science

Now, the bearing of all these simple

and ethics are not most valuable for the understanding of certain aspects of the

"Social Self-control," in the Political Science Quarterly,

co-ordinate his activities advantageously with his group.

As Professor Giddings

discipline, the standardizing of conduct

1

See

Professor Giddings’ suggestive

vol. xxiv, no. 4.

article

on