religious character even at the start. The state is a group of individuals, families, and classes, considered as organized for the purpose of preserving internal peace. The existence of a state which succeeded in preserving the peace of a society would react favorably upon the army of that society. The army could fight better. Societies that did not organize states might have armies but their armies would not be so efficient and would meet disaster in battle. Only those human tribes could endure, as unconquered tribes, which organized states. By natural selection the state-forming qualities of human beings were transmitted to future generations, and the state, like the army and the family, became a permanent and essential institution in society.

From a lawyer's viewpoint the state is the greatest of the three institutions, and in theory it has absorbed the army and even regulates the family. What is law? Simply the rules prescribed by the state for preserving the internal peace of society. Society has other rules, such as those of morality and custom, with which the state is not necessarily concerned. But whenever the state as a civil organization prescribes a rule of conduct, whether moral or immoral, whether an ancient custom or a brand new whimsicality, that rule of conduct is a law. A state is a people organized for law. Law is that for which a people organize a state. The people were in need of peace. They could not produce it directly. They needed law first. Consciously or unconsciously, they invented the state as a machine to produce law. Having law they were enabled to preserve peace and order. In the twentieth century the United States Supreme Court in an adjudicated case, Davis v. Mills, 194 U. S. 451, has said: "Property is protected because such protection answers a demand of human nature, and therefore takes the place of a fight." The late Judge George A. Madill of St. Louis used to say to his pupils in the Washington University Law School: "Gentlemen, the object of law is not to administer justice. The object of the law is to preserve the peace." That was a protest against the mythical theory of justice. There is such a thing as justice, provided we under

stand justice to be simply a substitute for brute force, for trickery, and for hate. Law as a human institution was made by man. It did not come down from Heaven. It grew up from the muddy earth. Its object is to preserve the peace.

Some say this: "Does it not give rise to a rather weak and unidealistic conception of law to say that the object of law is simply to preserve the peace?" That depends entirely upon what one understands by peace. If peace means simply the absence of brawling, then this conception of law is not only weak but monstrously inaccurate. Does peace mean simply the absence of brawling? Is it nothing but a negative word? Is the idea of peace simply an idea of denial? Is there not an affirmative thought in the word? Is there not something dynamic, something constructive, germinating, evolutionary in the word peace? As lawyers use the word peace it means much more than the mere absence of brawling. With lawyers peace means the condition in human society which makes for social progress. The object of law is to preserve the peace in that It was an English lawyer of the seventeenth century, the great Edward Hyde, Earl of Clarendon, who said: "Peace is that harmony in the state that health is in the body."

sense.

If the biological tendency in jurisprudence is one of some significance, and if the general public sooner or later will come to look upon law from the biological viewpoint, then, inevitably, the attitude of the general public towards the institution of law will be more tolerant than it is at present. The average American citizen is impatient of law. The lawyer of the present day is the red-headed stepchild of the American people. The unpopularity of lawyers and of law is proverbial. The American people are proud of their biology, their psychology, and their sociology, but they forget all these acquisitions when they talk about law. The average American citizen is a hopeless old fogey on the subject of law. The average citizen insists upon approaching law from the viewpoint of theology or metaphysics or history. If human law is inferior to Divine law, then it must be a failure-away with it. If law is inferior to some abstract idea of perfection, then it must be a failure-away with

it. If law is a fact of history, then of course it must be ancient and out of date-away with it. Why should not law be approached from the viewpoint of common sense, of actual experience, of human nature? If law is compared with the custom of railroad directors in dealing with their stockholders, or with the custom of women in dealing with their domestic servants, it will be found to be a rather decent sort of phenomenon. The average lawyer may not be as good as the angel Gabriel, but he compares favorably enough with the average bank president or plumber. Law did not come down from Heaven. It grew up from the muddy earth. The surviving races of mankind have always had an instinct for law, that is for settling disputes through public tribunals and thus establishing precedents for the future. Persons who protest against law, whether individualists like Nietzsche and Tolstoi, or syndicalists like Sorel and Haywood, are protesting against a human instinct. This does not prove that they are wrong. But it is foolish for anyone either to agree or disagree without first understanding exactly what these glib critics of law are doing. They are protesting, not against the church or the government, but against a biological instinct developed through variation and selection among all the surviving races of mankind, a biological instinct which bears a direct causal relationship to that vague but desirable something which we call social prog

ress.

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