Social law

“ Finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit other and larger ends.
⁠From history and philosophy and custom, we pass, therefore, to the force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology.
⁠The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. ”

“ This brings us to the question of the force which dominates the making of laws, and I shall attempt to show that it is the needs of a community as distinguished from the needs of the individuals who compose it. If the standard of justice is subjective; that is, if laws are made by either individuals or communities, we must begin the study of law with a study of the evolution of the human race. While it was once thought that the individual was the unit into which the race was originally divided, almost everyone now concedes that the unit was the social group. ”

“ Society thus becomes a co-operative scheme for securing civil freedom through institutions, economic freedom through capital and invention, social liberty through culture, and freedom from violence through police regulation.
Might does not make right, but it does enforce the commonly recognized rights of each succeeding generation. The prime mission of government is the definition of the right, the just and fair regulation of class differences, and the enforcement of equality of opportunity under the rules of law. Every human right is associated with a social duty ”

“ There exists a code of social law, which is universally subscribed to, as necessary and indispensable for the preservation of social harmony and decorum. One man has given public notice that he is self-emancipated from its obligations ”

“ When the aim of society is seen to be that each of its members shall employ and develop his powers to the highest possible extent for the highest possible ends, then it will no longer be in abstract constructions of constitutional law, but rather in the laws of human life, that the criteria of social well-being will be sought. ”

“ The struggle for existence and well-being is regulated by social laws. If these were perfect, each individual could satisfy his wants in an equitable measure, that is to say in the measure of his faculties, his labor, and the service he renders to the community. ”

“ The advantage of belonging to such a society is not to be measured [Pg 82] by counting up the working of individual cases; but by the whole characteristics of the social state, taken as a whole, and including, as one essential part, the administration of criminal law in such a way as to be in conformity with the conditions of healthy social development. The difficulty, I think, though I can only indicate the argument briefly, results from a common illusion, which is illustrated by the once famous social contract theory. ”

“ I am content to think of law as a social institution to satisfy social wants—the claims and demands involved in the existence of civilized society—by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. ”

“ But the privilege of social equality with all in a similar condition, which results from the discharge of the duties of that condition, is the right of every one. Some will require positive law to secure them; as in the marriage relation, the social as well as other rights of the parties must be secured by law; whilst others will be better secured by leaving them to be regulated by the conventional usages of society—only another form of government. ”

“ For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering. ”

“ He finds law controlling economic power and imposing social responsibilities upon individual ownership. He finds the common will and the common well-being putting a bridle on the neck of the individual will and the individual interest. ”

“ We have, that is, two different, though not altogether distinct, provinces of what I may, perhaps, call organic and functional morality. We may take the existing order for granted, and ask what is then our duty; or we may ask how far the structure itself requires modification, and, if so, what kind of modification. A man who assumes the existence of the present structure may act justly or unjustly within the limits so prescribed. He must generally be guided in a number of cases by some principle of equality. The judge should endeavour to give the same law to rich and poor ”

“ The entire history of social life is permeated by this process: the positively antagonistic motives of individuals, with which their social life begins, grow up into separate and independent organisms. Thus, from the regulations for preserving the group-life there arise, on the one hand, the law which codifies them, and, on the other, the judge whose business it is to apply them. ”

“ How much more sturdy he would have been had he been led to clearly see the social necessities that step by step gave rise to moral law law that grows higher and broader with social need and raises ever to its own level its own creators! ”

“ Social laws are universal laws, the same for all, and, like everything that is universal, they in numberless cases victimise. No matter how singular the individual may be, he is treated like every one else. ”

“ If the sequence of events seems to indicate the existence of a law governing social development, such a law may be suggested, but to approve or disapprove of it would be as futile as to discuss the moral bearings of gravitation. ”

“ I believe that my theory is correct; for whatever be the question upon which I am arguing, whether it be religious, philosophical, political, or economical; whether it affects well-being, morality, equality, right, justice, progress, responsibility, property, labor, exchange, capital, wages, taxes, population, credit, or Government; at whatever point of the scientific horizon I start from, I invariably come to the same thing—the solution of the social problem is in liberty. ”

“ Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. [23] One of the most fundamental social interests is that law shall be uniform and impartial. ”

“ True, the law is sacred to the bourgeois, for it is his own composition, enacted with his consent, and for his benefit and protection. He knows that, even if an individual law should injure him, the whole fabric protects his interests; and more than all, the sanctity of the law, the sacredness of order as established by the active will of one part of society, and the passive acceptance of the other, is the strongest support of his social position. ”

“ Well, the legislators confounded in one code the two currents of custom, of which we have just been speaking, the maxims which represent principles of morality and social union wrought out as a result of life in common, and the mandates, which are meant to ensure eternal existence to inequality. Customs, absolutely essential to the very being of society, are, in the code, cleverly intermingled with usages imposed by the ruling caste, and both claim equal respect from the crowd. “Do not kill,” says the code, and hastens to add, “And pay tithes to the priest.” “Do not steal,” ”

“ So long as government and law provide for the security and well-being of men in their common life, the arts, literature and the sciences, less despotic though perhaps more powerful, fling garlands of flowers over the chains which weigh them down. ”

“ This theory of the direction of control can be verified by examining the facts. The legal, social or moral codes actually enforced in a community express the social will, seeing they are collective products, and intended to regulate conduct. The study of these, therefore, reveals the direction of social control.
If we study undeveloped societies, we find no such formulations of the social will. If we study very advanced societies, we find the social will formulated into such general principles and abstract propositions that its true tendency does not appear on the surface. ”

“ Whilst in the course of ages the nucleus of social custom inscribed in law has been subjected to but slight and gradual modifications, the other portion has been largely developed in directions indicated by the interests of the dominant classes, and to the injury of the classes they oppress. ”

“ The social organization system and legal regime, ranging from ancestral family and community principles and ethical and moral standards, passing through production and trade relations, solidarity and social responsibility, forms of community and state administration; up to a very complex system of laws, rules, uses and customs that embodied free work by the community, the stewardships and charges system, which allowed the orderly and balanced community life as well as relationships and exchanges with other communities or states. ”

“ If an agreement exists, who is to execute its provisions? And if some refuse to assist, and shirk social duties, have they any claim to the assistance of the organization, have they any social rights? ”

“ And just as the recognised interest of a society constitutes for each member of it the right to free life, just as it makes each conceive of such life on the part of himself and his neighbour as what should be, and thus forms the basis of a restraining custom which secures it for each, so it constitutes the right to the instruments of such life, making each regard the possession of them by the other as for the common good, and thus through the medium first of custom, then of law, securing them to each. ”

“ The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. But how are they to regulate them? Is it to be by common agreement, by a sudden inspiration? ”

“ I shall end this chapter and this book by remarking on a fact on which the whole social system should rest: i.e., that, instead of destroying natural inequality, the fundamental compact substitutes, for such physical inequality as nature may have set up between men, an equality that is moral and legitimate, and that men, who may be unequal in strength or intelligence, become every one equal by convention and legal right. ”

“ That the object, then, of the social union, may be obtained; in other words, that the weak may not be deprived of their share of good things, it is necessary to fix, by some determination, what shall belong to each, and to make choice of certain marks by which the share of each may be distinguished. This is the origin of right. It is created by this sort of determination, which determination is either the act of the whole society, or of some part of the society which possesses the power of determining for the whole. Right, therefore, is factitious, and the creature of will. ”

“ The perfect industrial organisation is, I shall assume, compatible with or rather a condition of a perfect organisation of other kinds. In the most general terms we have to consider what are the principles of social organisation, which of course implies a certain balance between the various organs and a thorough nutrition of all, while yet we may for a moment confine our attention to the purely industrial or economic part of the question. How, if at all, does the principle of equality or of social justice enter the problem? ”

“ It impedes my right to free moral and intellectual development, by surrounding my path with dangers, and by weakening and demoralizing society, from which I have a right to claim mutual aid and intercourse.' A theory of 'social rights,' the like of which probably never before found its way into distinct language: being nothing short of this—that it is the absolute social right of every individual, that every other individual shall act in every respect exactly as he ought ”

“ The first man you meet will undoubtedly tell you that there are a number of laws now in force in the United States which he does not think are consistent with liberty and (natural) rights—I who write this would say so of laws restricting immigration, laying protective taxes, etc. But it is to be observed that behind the positive law existing at any time, there is the moral reflection of the community which is at work all the time. ”

“ On the contrary, the communities in which the reason has been most cultivated, and in which the idea of social duty has been most powerful, are those which have most strongly asserted the freedom of action of the individual—the liberty of each to govern his conduct by his own feelings of duty, and by such laws and social restraints as his own conscience can subscribe to. ”

“ From whatever side we approach our principle, we reach the same conclusion, that the social compact sets up among the citizens an equality of such a kind, that they all bind themselves to observe the same conditions and should therefore all enjoy the same rights. ”

“ When, therefore, the instructed in general can be brought to recognize one social arrangement, or political or other institution, as good, and another as bad—one as desirable, another as condemnable, very much has been done towards giving to the one, or withdrawing from the other, that preponderance of social force which enables it to subsist. ”