Courts first came into existence, the evidence indicates, when society was organized over wider areas and after some authority had been established outside of the local community. As society was organized over a wider territory, control was extended to ever wider areas of human life until we have at present a program for international courts with power to intervene between nations to prevent wars.[260]
Society, like the individual man, moves and acts under the influence of a multitude of minor impulses and tendencies which mutually interact to produce a more general tendency which then dominates all the individuals of the group. This explains the fact that a group, even a mere casual collection of individuals like a crowd, is enabled to act more or less as a unit. The crowd acts under the influence of such a dominant tendency, unreflectively, without definite reference to a past or a future. The crowd has no past and no future. The public introduces into this vortex of impulses the factor of reflection. The public presupposes the existence of a common impulse such as manifests itself in the crowd, but it presupposes, also, the existence of individuals and groups of individuals representing divergent tendencies. These individuals interact upon one another critically. The public is, what the crowd is not, a discussion group. The very existence of discussion presupposes objective standards of truth and of fact. The action of the public is based on a universe of discourse in which things, although they may and do have for every individual somewhat different value, are describable at any rate in terms that mean the same to all individuals. The public, in other words, moves in an objective and intelligible world.
Law is based on custom. Custom is group habit. As the group acts it creates custom. There is implicit in custom a conception and a rule of action, which is regarded as right and proper in the circumstances. Law makes this rule of action explicit. Law grows up, however, out of a distinction between this rule of action and the facts. Custom is bound up with the facts under which the custom grew up. Law is the result of an effort to frame the rule of action implicit in custom in such general terms that it can be made to apply to new situations, involving new sets of facts. This distinction between the law and the facts did not exist in primitive society. The evolution of law and jurisprudence has been in the direction of an increasingly clearer recognition of this distinction between law and the facts. This has meant in practice an increasing recognition by the courts of the facts, and a disposition to act in accordance with them. The present disposition of courts, as, for example, the juvenile courts, to call to their assistance experts to examine the mental condition of children who are brought before them and to secure the assistance of juvenile-court officers to advise and assist them in the enforcement of the law, is an illustration of an increasing disposition to take account of the facts.
The increasing interest in the natural history of the law and of legal institutions, and the increasing disposition to interpret it in sociological terms, from the point of view of its function, is another evidence of the same tendency.
II. MATERIALS
A. ELEMENTARY FORMS OF SOCIAL CONTROL
1. Control in the Crowd and the Public[261]
In August, 1914, I was a cowboy on a ranch in the interior of British Columbia. How good a cowboy I would not undertake to say, because if there were any errands off the ranch the foreman seemed better able to spare me for them than anyone else in the outfit.
One ambition, and one only, possessed me in those days. And it was not to own the ranch! All in the world I wanted was to accumulate money enough to carry me to San Francisco when the Panama exposition opened in the autumn. After that I didn't care. It would be time enough to worry about another job when I had seen the fair.
Ordinarily I was riding the range five days in the week. Saturdays I was sent on a 35-mile round trip for the mail. It was the most delightful day of them all for me. The trail lay down the valley of the Fraser and although I had been riding it for months it still wove a spell over me that never could be broken. Slipping rapidly by as though escaping to the sea from the grasp of the hills that hemmed it in on all sides, the river always fascinated me. It was new every time I reached its edge.