The Sociological Foundations of Law
579
all conduct is reasoned out, and so it presupposes a much higher degree of intellectual development than what we find in human societies. Again, it sup poses that human nature is much simpler than it really is, and is made up quite
social advantage than with its origin. Of course, this is saying in efiect that rational opinion does play an increas
entirely of intellectual elements.
logical order is law, then custom, then
The
word “contract” in its broadest sense is evidently quite inadequate to express
the actual relations which we find be tween individuals, whether in civilized
or in primitive society.
These relations
for the most part are on a basis of habit
ingly important part in originating law as social evolution advances, but the
point to be noticed is that the psycho habit, then instinct.
The laws by which
social groups seek to regulate the con
duct of their members rest in the last analysis upon the instincts which have been implanted in human nature through ages of collective living, but the modi
and instinct rather than that of con
fications of law which so rapidly go on
scious agreement. There is, therefore, no social compact or social contract at the basis of law or any other social insti tution. The researches of legal historians and sociologists alike have shown that law undoubtedly had its origin in custom or social habit. Now, custom is so far from resting upon mutual agreement or con tract that we can say in general that con
in civilized societies are wrought largely by reason and rational opinion, though of course “reason” must not be con
tract has very little to do with the origin of custom. Mr. Carter's chief mistake
sidered as necessarily opposed to human instincts. If law rests upon custom, and “cus
tom” is but another name for collective habit, then formal laws are merely social habits brought to consciousness for the sake of greater control over them. Indeed, from the standpoint of their
activity, as Bentley says,’ laws are
in discussing the origin of law was made when he remarked that custom rests upon “opinion of the past.” Opinion,
nothing but the “habitual activities of society, enforcing themselves upon the
whether past or present, usually comes
is a chief means, as we have already
in to support custom, but as a rule has
noticed, by which society maintains its unity and solidarity. Consequently, also, law has come to be used in recent times largely as a means of coercing a variant social minority to co-ordinate its activi
little to do with its origin, and espe cially had little to do with its primitive origin. Customs are simply collective habits, and habit rests as much upon
instinct and impulse as it does upon reasoned opinion.
A course of conduct
may be entered upon by an individual or a group, by a series of happy acci dental adjustments quite as often as by reasoned opinion. It is evident that the impulses and instincts also have much to do in determining which of
several courses of conduct shall be entered upon.
Reasoned opinion, there
fore, has more to do with confirming custom or with modifying it in ways of
would-be variants."
Consequently law
ties with those of the majority. Where the new law represents the habits of
thinking and acting of an undoubtedly clear majority of a given group, there is usually little difliculty in securing its enforcement. On the other hand, laws
which represent only the habits of a minority of population, it follows, are not easily enforced—at least not in democratic communities where popular IThe Process of Government: a Study in Social Pressures.
