GUIDE TO THE PHILOSOPHY 1938 - 1947.pdf - Rare Books at ...

THE IDEALIST THEORY OF THE STATE 577
predict how on a given occasion the society would behave.
The conclusion is the same as that already reached; society
is like a tree, or like a man's character deterministicaUy
conceived; it is, that is to say, an organic growth, the
necessary product of the factors which, given
its initial
constitution, could not do other than make it what it is,
FUNCTION AND CHARACTER OF LAW IN A. SOCIETY.
Maine's positive contribution to political theory is bound
up with his conception of law. In consonance with the
general trend of his thought, he rejects accounts of
law derived from abstract principles apprehended a priori.
Law is not a product of some mythical General Will,
as Rousseau supposed, nor is its purpose to secure the
greatest happiness of the greatest number, as Bentham
thought, nor is it designed to safeguard Natural Rights,
nor to increase man's moral virtue. Law is, for Maine,
simply an expression of the nature of the people who
observe it. In this sense it is at once a development
and a crystallization of popular custom. The gist of this
attitude is expressed in the writings of a nineteenth-century
French writer, Savigny. "Law," he said, "is the organ
of folk-right: it moves and grows like every other expression
of the life of the people: it is formed by custom and popular
feeling, through the operation of silent forces and not by
the arbitrary will of a legislature." Thus, to adapt a
phrase of Maine's, as society develops, the individual's
position advances from that of Status to Contract. In
a primitive society the individual occupies a position
which is assigned to him by virtue of his membership of
a social group, a position which is recognized but not
defined; in a civilized society he assumes a position regular*
ized by contracts into which he has freely entered, and
sanctioned by law, to whose authority he has fredy sub-
scribed.
The conclusion in regard to law is similar to that already
reached in regard to the constitution of the State and
the basis of authority in the State. Society is a natural