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The Green Bag
Again it is manifest that effective legislation can only be produced by a succession of experimental tests. A priori speculation is of assistance, to be sure, in framing working hypotheses, but actual experiment is always the court of last resort. When legislators become all wise and the laws of social evolution are thoroughly understood, it may become possible to devise a system of regulation for a new set of social phenomena which will be effective in the first instance, but that day is yet far distant. When a particular scheme of legislation, devised for the purpose of ameliorating some vicious social con dition of which society has recently become conscious, is proposed, it is impossible to determine what would be its effect if it were put into actual opera tion. It is impossible to foretell, on theoretical grounds, to what extent its provisions will be nullified by irresist ible unconscious forces. It is impossible to foresee what other groups of social forces it will set in motion, and it is just as impossible to determine in advance whether or not these forces newly aroused will be beneficent or otherwise. The only practical method of disposing of these difficulties is the method of progressive experimentation here out lined. It is the method which a study of the history of legislation would indicate to be the only one possible to finite man. He may construct beautiful imaginative Utopias and devise statutes ideally perfect, but in order to devise really efficient legislation for the control and regulation of any set of complex social phenomena, he is ultimately forced to adopt the method of experiment and analysis. Theoretical sociology and theoretical economics can never be more than adjuncts and subordinate assis tants to actual experiment. The evolution of law is an extremely
complex process. Three sets of factors come into operation: first, the uncon scious forces of the inorganic and lower organic worlds; second, the forces, physical and psychical, conscious and unconscious, manifested in man as an individual; and third, the complex group of forces controlling men in the mass, which are called social forces. All of these forces are eternally dynamic; they are at work in an unceasing and infinitely complex interplay. A particu lar social phenomenon can never be traced to any specific individual cause, but is always the resultant of a multi tude of causes acting and reacting upon each other. It is with this complex system of causation that man's con scious efforts to regulate social phenom ena by law must be in harmony before the law can be efficient. The apparent complexity is multiplied when we take into consideration the further fact that the society which we are trying to regulate is also undergoing a process of development and is changing to some different condition even while we are trying to adapt our system of regulation to the conditions existing. In other words, while we have been experiment ing to make a law effective, the condi tion which we are endeavoring to regu late has itself changed. These observations lead to the con clusion that the law ultimately resulting from this process is determined, upon final analysis, by the unconscious social forces, and not by any conscious fore sight of men. Man's conscious share in the process consists in adapting his means to the working of the unconscious social forces. What is here meant is simply that the final form of the law is determined by the underlying social forces. This process is necessarily slow. It takes considerable periods of time to
