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We are only at the beginning of a philosophical reaction； and of a
reconsideration of the worth of doctrines which for the most part still
are taken for granted without any deliberate； conscious； and systematic
questioning of their grounds。 The development of our law has gone on
for nearly a thousand years； like the development of a plant； each
generation taking the inevitable next step； mind； like matter； simply
obeying a law of spontaneous growth。 It is perfectly natural and right
that it should have been so。 Imitation is a necessity of human nature；
as has been illustrated by a remarkable French writer； M。 Tard； in an
admirable book； Les Lois de l'Imitation。 Most of the things we do； we
do for no better reason than that our fathers have done them or that our
neighbors do them； and the same is true of a larger part than we suspect
of what we think。 The reason is a good one； because our short life
gives us no time for a better； but it is not the best。 It does not
follow； because we all are compelled to take on faith at second hand
most of the rules on which we base our action and our thought； that each
of us may not try to set some corner of his world in the order of
reason； or that all of us collectively should not aspire to carry reason
as far as it will go throughout the whole domain。 In regard to the law；
it is true； no doubt； that an evolutionist will hesitate to affirm
universal validity for his social ideals； or for the principles which he
thinks should be embodied in legislation。 He is content if he can prove
them best for here and now。 He may be ready to admit that he knows
nothing about an absolute best in the cosmos； and even that he knows
next to nothing about a permanent best for men。 Still it is true that a
body of law is more rational and more civilized when every rule it
contains is referred articulately and definitely to an end which it
subserves； and when the grounds for desiring that end are stated or are
ready to be stated in words。
At present； in very many cases； if we want to know why a rule of law has
taken its particular shape； and more or less if we want to know why it
exists at all； we go to tradition。 We follow it into the Year Books；
and perhaps beyond them to the customs of the Salian Franks； and
somewhere in the past； in the German forests； in the needs of Norman
kings； in the assumptions of a dominant class； in the absence of
generalized ideas； we find out the practical motive for what now best is
justified by the mere fact of its acceptance and that men are accustomed
to it。 The rational study of law is still to a large extent the study
of history。 History must be a part of the study； because without it we
cannot know the precise scope of rules which it is our business to know。
It is a part of the rational study； because it is the first step toward
an enlightened scepticism； that is； towards a deliberate reconsideration
of the worth of those rules。 When you get the dragon out of his cave on
to the plain and in the daylight； you can count his teeth and claws； and
see just what is his strength。 But to get him out is only the first
step。 The next is either to kill him； or to tame him and make him a
useful animal。 For the rational study of the law the blackletter man
may be the man of the present； but the man of the future is the man of
statistics and the master of economics。 It is revolting to have no
better reason for a rule of law than that so it was laid down in the
time of Henry IV。 It is still more revolting if the grounds upon which
it was laid down have vanished long since； and the rule simply persists
from blind imitation of the past。 I am thinking of the technical rule
as to trespass ab initio； as it is called； which I attempted to explain
in a recent Massachusetts case。
Let me take an illustration； which can be stated in a few words； to show
how the social end which is aimed at by a rule of law is obscured and
only partially attained in consequence of the fact that the rule owes
its form to a gradual historical development； instead of being reshaped
as a whole； with conscious articulate reference to the end in view。 We
think it desirable to prevent one man's property being misappropriated
by another； and so we make larceny a crime。 The evil is the same
whether the misappropriation is made by a man into whose hands the owner
has put the property； or by one who wrongfully takes it away。 But
primitive law in its weakness did not get much beyond an effort to
prevent violence； and very naturally made a wrongful taking； a trespass；
part of its definition of the crime。 In modem times the judges enlarged
the definition a little by holding that； if the wrong…doer gets
possession by a trick or device； the crime is committed。 This really
was giving up the requirement of trespass； and it would have been more
logical； as well as truer to the present object of the law； to abandon
the requirement altogether。 That； however； would have seemed too bold；
and was left to statute。 Statutes were passed making embezzlement a
crime。 But the force of tradition caused the crime of embezzlement to
be regarded as so far distinct from larceny that to this day； in some
jurisdictions at least； a slip corner is kept open for thieves to
contend； if indicted for larceny； that they should have been indicted
for embezzlement； and if indicted for embezzlement； that they should
have been indicted for larceny； and to escape on that ground。
Far more fundamental questions still await a better answer than that we
do as our fathers have done。 What have we better than a blind guess to
show that the criminal law in its present form does more good than harm？
I do not stop to refer to the effect which it has had in degrading
prisoners and in plunging them further into crime； or to the question
whether fine and imprisonment do not fall more heavily on a criminal's
wife and children than on himself。 I have in mind more far…reaching
questions。 Does punishment deter？ Do we deal with criminals on proper
principles？ A modern school of Continental criminalists plumes itself
on the formula； first suggested； it is said； by Gall； that we must
consider the criminal rather than the crime。 The formula does not carry
us very far； but the inquiries which have been started look toward an
answer of my questions based on science for the first time。 If the
typical criminal is a degenerate； bound to swindle or to murder by as
deep seated an organic necessity as that which makes the rattlesnake
bite； it is idle to talk of deterring him by the classical method of
imprisonment。 He must be got rid of； he cannot be improved； or
frightened out of his structural reaction。 If； on the other hand；
crime； like normal human conduct； is mainly a matter of imitation；
punishment fairly may be expected to help to keep it out of fashion。
The study of criminals has been thought by some well known men of
science to sustain the former hypothesis。 The statistics of the
relative increase of crime in crowded places like large cities