stimulated as a product of unknown value. Over-legislation is the result partly of undue haste in realizing ideals and partly of pure indolence. It is much easier to declare an evil abolished by a sovereign body than it is to resort to the slow process of elimination by the method of education or by the more thorough system of the removal of causes.

Over-extension of legislation is most common with those who have recently acquired political power. Their newly acquired power seems to them a short cut to the social ideal. Popular representation, universal suffrage, the initiative and referendum, have all been followed by periods of excessive control through law. These progressive extensions of political power have been heralded as means of realizing sweeping reforms; and they have invariably been accompanied with an over-extension of legislation, restricting individual freedom. It is only through long experience that the proper limitation of legislative control is learned.

The insecurity of the governing power. The restrictions upon legislation which arise from the instability of the governing power are of little interest theoretically, but practically they have a continual influence upon the character of legislation. No governing power, whether it be an individual ruler or a political party, is absolutely secure in its position. The first instinct of a governing body, like that of an individual, is selfpreservation; and the next is advantage for the government and its supporters. So-called unselfish legislation for the general welfare is too frequently merely a means to self-preservation. The despot who holds his power through military force may rule to the advantage of his own circle so long as the army is kept loyal by participation in the spoils. But as a government grows to be more democratic it has to legislate in the interests of a larger and larger number of people. If the governing power in a democracy represents a strong party, it may ignore to a greater extent the claims of the minority and rule in its own interests. If parties are more evenly divided, self-preservation requires the abandonment of narrow and flagrant party legislation and greater consideration for outside interests, in order that the support of the doubtful and independent elements be

retained. A large independent vote therefore is likely to be the most efficient curb on narrow party legislation.

If a governing body finds its position precarious, its insecurity is usually reflected in weak legislation. Strong positive measures are side-stepped, and legislation is likely to be vacillating, or to be confined to unimportant matters to avoid alienating support. However, a tottering government is not always equivocal or colorless in its action. Occasionally, if it contains

. strong leaders, it will pass some bold measures for the general welfare in order thereby to regain its lost prestige. But the governing body which feels it has the confidence of an intelligent but independent majority is, as a general rule, most likely to enact broad measures for the general welfare.

Two Theories Concerning the Basis of Law. In addition to the problem of the origin of law, another, closely related, deals with the principles comprised in it. Upon the subject of the basis of law, there are two schools of thought. One believes that law represents an abstract principle of justice in the process of realization; and the other holds that law is based on force, – that it is the control of the weak by the strong. Convincing arguments can be made for both these theories, because they both have in them an element of truth. At any given time the character of the law is governed by two distinct forces; the nature of the state, or perhaps the general organization of society, and the moral ideals of a people; that is, a social relationship on the one hand, and a psychological force on the other. These two influences cannot be of equal power, however, because they are often incompatible with each other and hence one must be subordinated to the other. It has already been pointed out that self-preservation is a primary instinct with governing bodies; and, according to this principle, at any given time moral ideals may be subordinated to the needs of selfpreservation. States which were formed after conquest from the amalgamation of conquerors and conquered were naturally based on force. The law registered the powers and privileges of the conquerors and ideas of abstract justice were ignored in maintaining the position of those in power. In such cases it is almost a truism to say that law was based on force, and that it

was used to guard the position of the strong. Every governing body tries to retain the existing social relations. When these relations are modified so that the former privileged class loses its power, the change is in the nature of a revolution.

Even under conditions of gross inequality in a state, however, moral principles are not entirely ignored. Ideals of justice continually influence legislation and modify social relations, though always within the limits of the existing social organization. Under a system of slavery the law may materially improve the relationship of free men to one another; and it may make more humane the relationship of master and slave; but it presupposes the system of slavery, and moral ideals are molded to the needs

that system. This is uniformly the relationship of these two factors at a given period of time and under a given social organization; but over long periods of time moral ideals come to be of increasing importance in the formation of law. Without attempting to determine the relative influence which ideas of justice and the existing social relationships have had in the struggle for social equality and political freedom, it is evident that, as societies become more and more democratic, class domination and special privilege receive less and less consideration in the making of law. And when democracy is completely realized principles of abstract justice in legislation will not have to be modified in the interests of a privileged class. Social relationships can then be made to coincide with moral principles.

The conclusion with regard to the relationship of social status and abstract justice in the formation of law is then that at any given time moral principles are subordinated to the need of preserving the existing social relations; over long periods moral principles triumph, social inequalities give way, and justice for all comes to be the chief principle underlying legislation.

The Development of Law. Amount of legislation. The final subject to be considered, the development of the law, has three aspects; the quantity of legislation, the change in the subject matter of law, and the methods of legislation. The amount of law needed in any society may easily be deduced from the nature of law, as previously outlined. Law is a means of social control, and therefore its amount increases with the need for social control. Law is, however, only one of several forms of control. It arises directly out of the authority of the state, and is based on force as the ultimate means of coercion. Therefore laws do not necessarily multiply with the need of social control of every kind, but only with that form exercised through coercion by the state.

A detailed analysis of the conditions which require an extension of legislation necessitates a classification of law. For the present purpose a division of law into two general classes will suffice: repressive law and regulative law, divisions which coincide approximately with criminal law and civil law. Repressive law has to do with those external acts ordinarily understood as immoral, that is, those which, as Durkheim points out, in their nature arouse the strong opposition of society as a whole. The reaction against them comes from the instinct of self-preservation itself. Regulative law applies to conduct which is not in itself considered immoral. It attempts to administer rules which will facilitate the smooth operation of social life.

The need of regulative law then is evident. Its amount increases with multiplicity of social contacts, for multiplication of contacts brings ever growing possibilities of friction and conflict. Regulative law therefore grows with the volume, and more especially with the density, of population. A manufacturing or a commercial state with its large cities needs more laws than an agricultural state with its scattered population; and cities must have more regulations than rural districts. Increase in the density of population alone is not quite sufficient, however, to explain the need for increase in regulative law. Conflicts arising in society are not wholly personal, they are rather conflicts in interests; and those interests arise out of property as well as out of individual activities. The need for law therefore may increase with the growth in the amount of property or with a change in the forms of wealth, and also with increased ease of travel and communication, which multiplies contacts of all kinds and therefore causes new conflicts. An increase in the density of population is the most evident cause for an increase in regulative law, but even in a stationary population any change in social conditions may necessitate new laws.

A complete analysis of the reasons for an increase in criminal laws would involve a discussion of all the causes of crime, and would be out of place in this brief treatment. The problem here, however, is really a narrower one. It has to do with the number of crimes, rather than the number of criminals committing the same crimes. In general an increase in acts which a society classifies as criminal arises out of two sources: first, changed social conditions which make possible new methods of injuring society; and, secondly, an improvement in the accepted standards, which causes a people to legislate against a larger number of unsocial acts. The changed conditions which give occasion for new crimes are chiefly economic, but they may arise from altered social or living conditions. For example, pure food laws were essential only after people began to purchase prepared foods in the market. From this point of view repressive law has an origin similar to that of regulative law.

The conditions which give rise to changes in moral standards are analyzed in a later chapter. It may be said here, however, that new moral standards or principles are first perceived by social leaders who are able to grasp the new needs of society. These ideas gradually spread by education and agitation until finally they are accepted by the great mass of the population; then, if they are of suitable character, they may become embodied in the law. Criminal law therefore will show a tendency to increase among a people progressive in its standards, whereas it will not show any such increase among a people which is stationary. But an improvement in standards implies also an increase in the proportion who will fall below the new standard, and therefore an increase in the number of those violating the law. This is one reason why crime seems to increase in a progressive society more than it does in a backward society. This increase does not indicate deterioration, as is sometimes supposed, but rather improvement. While regulative law increases directly with social contacts, repressive law is affected only to the extent that such increase in density stimulates changes in social conditions or tends to modify moral standards. It might be supposed that in a progressive society the need for criminal law, at least, would decrease; but it is probable that both regu