Capitalism Economic system, money exchange, private ownership

Economic system whose characteristics are: a money exchange; private ownership of the means of industrial production (or CAPITAL); production for the purpose of obtaining a profit; competition among private manufacturers or "businessmen" in the sale of goods or services, at prices set by the producers to bring in a profit over the original investment; and private control over the return from the sale of goods or services. Capitalism came into being at the end of the Middle Ages, with the break-up of the system of Feudalism. Typical capitalists are bankers, industrial manufacturers, merchants, and "businessmen" of various sorts. The earliest period of capitalism, during the Renaissance and early part of the 17th century, is considered to have been marked by an accumulation of capital, and the next stage, during the 18th century, by the development of large industries held in individual hands. From the 19th century to the World Wars of the 20th century, capitalism came to be distinguished more and more by a development from individual to corporate ownership, reduction in competition through monopoly and centralized control, and separation of ownership and management.

Aida An opera by Verdi

An opera by VERDI (libretto by Ghislanzoni from the French of Camille du Locle) generally considered his masterpiece ( 1871). The scene is laid in Egypt in the time of the Pharaohs. The Egyptian general Rhadames is in love with Aïda, a slave who is in reality the daughter of Amonasro, ruler of Ethiopia. She returns his passion, but he is also beloved by Amneris, daughter of the king of Egypt, whose hand is formally bestowed upon him by his sovereign.

The exigencies of the war between Egypt and Ethiopia make King Amonasro a captive of the victorious Rhadames, but his true rank is not known. Urged by her father's fiery words, Aïda endeavors to persuade Rhadames to flee with them and give his support to Ethiopia. Rhadames holds back but involuntarily betrays the place of attack planned for the morrow Amneris and the chief priest interrupt the scene; Amonasro and Aïda flee and Rhadames, who gives himself up, is condemned to be buried alive for treason. While the remorseful Amneris prays in the temple above, Aïda joins him and perishes with him in the crypt.

Absalom and Achitophel

A famous political satire in verse published in 1681, the first part by Dryden and the second by Nahum Tate and revised by Dryden. The general scheme is to show the rebellious character of the Puritans, who insisted on the exclusion of the Duke of York from the succession, on account of his being a pronounced Catholic, and the determination of the King to resist this interference with his royal prerogative, even at the cost of a civil war. Of the principal characters, David stands for Charles II; Absalom for his natural son James, Duke of Monmouth (handsome and rebellious); Achitophel for Lord Shaftesbury Zimri for the Duke of Buckingham; and Abdael for Monk. The accommodation of the biblical narrative to contemporary history is so skilfully made that the story of David seems to repeat itself. Of Absalom, Dryden says (Part i):

Whate'er he did was done with so much case.
In him alone 'twas natural to please;
His motions all accompanied with grace,
And paradise was opened in his face.

Abraham: The founder of the Hebrew nation

Abraham

The founder of the Hebrew nation and its first patriarch. With his wife Sarai and his nephew Lot he migrated from. Ur of Chaldees into the Land of Canaan, where he settled and prospered. To test his faith Jehovah commanded him to offer up his son Isaac as a burnt offering, but when he was about to draw the knife, a ram was provided instead.

The story of Abraham is told in Gen. xii-xiii and in various Mohammedan legends, which relate that at the age of fifteen months Abraham was equal in size to a lad of fifteen, and was so wise that his father introduced him to the court of King Nimrod; that Abraham and his son "Ismail" rebuilt for the fourth time the Kaaba over the sacred stone at Mecca; and that Abraham destroyed the idols manufactured and worshiped by his father, Terah. See also Sarai, Hagar, Isaac, Sodom and Gomorrah.

Pilgrimage to the Holy Thorn

Old Christmas Eve, January 5

Up and down England's West Country coast from Marazion, one-time outpost of Cornwall's tin mines, on north to Paradise, in Somerset, the story of how Jesus visited Britain recurs persistently and in varying guises,--in folk song and proverb, in place name and oral tradition. But one must tramp on up to Priddy, high in the Mendips, as I have done, to hear people speak reverently of Jesus, who "came with his uncle, Joseph of Arimathaea," during the "hidden years" about which the Gospels tell us nothing. In humble cottages throughout these lonely windswept hills, once the center of Roman lead mining operations, people draw close to their hearths and speak of Jesus as the Beloved Friend, who recently passed this way.

"Everybody up here knows He came to the lead mines from Glastonbury with His uncle," said an old Priddy-born woman. Then, a radiant smile breaking over her wrinkled, care-worn features, she suddenly leaned forward, speaking confidentially:

"It makes us feel so safe to know our land is blessed:

And did those feet in ancient time
Walk upon England's mountains green?"

she quoted haltingly from William Blake poem, Milton.

She stopped, groping for words.

"Please go on. How does the next line go?" I encouraged.

"Well, you ought ter know," said the old woman reprovingly. "Surely, you've 'ad as much schooling as I!"

Her husband, sitting opposite in the worn rocking chair, continued the poet's thoughts in his own way.

"You know," he said dreamily, "when the rains come and you look down the hills here, it's green all about. This is the spot!"

" Jesus came to Priddy," declared the plump postmistress. "And on the way He stopped at Charterhouse," she added, referring to the small hamlet some three miles back on the Mendips, once a thriving lead mining center of both Britons and Romans.

At Paradise, close to Burnham-on-Sea, the Holy Visitors traditionally began their journey, according to people in the vicinity. A farm woman left her green grocery untended to step up to the corner and explain the very route.

" Jesus and His uncle landed right down at the bottom of that road yonder," she said, pointing toward the sea. "They beached their flat-bottomed boat on the sand tops (dunes) and sojourned there awhile. Then they walked right up past here," she said, pointing to the grassy lane where we stood, "and went on to the 'Green Hump.' That's Brent Knoll," she explained, indicating the large hill rising some miles distant above lush, cattle-dotted pastures.

"You know," she added wistfully, "one day I hope to make the whole journey."

At Glastonbury, where it is believed Joseph and Jesus eventually arrived, the thorn blossoms each Christmastide. On January 5 pilgrims from far and near go to Glastonbury to see this thorn which blooms in St. John's churchyard, in plain view of passers-by. Branches of the shapely tree, which has waxy white flowers resembling those of English hawthorn, are reverently cut and arranged on St. John's altar for the Christmas Eve service. Tradition says many cures have been effected on the faithful, by their touching it. For, according to Tennyson:

. . . if a man Could touch or see it, he was healed at once By faith, of all his ills.

The Glastonbury Thorn is said to be an offshoot of the miraculous staff that Joseph of Arimathaea planted when journeying to Glastonbury. Traditionally, it blooms on Old Christmas Eve, January 5. Should the tree's blossoming vary by a few days in one direction or the other, then the fault is said to lie with the modern calendar. It was not until 1752 that England finally adopted the New Style calendar which already had been in use in Europe for some time. And many West Country folk believe that Christ was really born on January 6, Old Christmas Day, not on December 25 of the modern calendar.

We are told that a zealous Puritan chopped down the original thorn during the Civil Wars. Be this as it may, throughout the centuries pilgrims have carried many other thorns, slipped from the original, to distant places. At least three are in Glastonbury--the one already mentioned, a smaller tree growing within the ancient Abbey's precincts, and the young grafting recently planted on Wearyall Hill, at the very spot where, it is said, Joseph thrust his staff into the earth. No less than six such trees exist in Herefordshire alone, while other counties claim their thorns also, and hold special services to honor the Christmastide bloomings.

The Glastonbury Thorn is of Syrian origin and the story of how it traveled from Syria to a Somerset town constitutes an important chapter in the Glastonbury legend, "which is truth, not legend," according to a devout churchman with whom I talked.

As with all such living traditions, the Glastonbury story has many strands which sometimes merge, sometimes diverge widely. According to the popular English version of the legend, Joseph was a wealthy tin merchant who came to Cornwall in the course of extensive trading with the Phoenicians. Cornish miners still cherish the old song, "Joseph was a tin-man." On one of his trading voyages for tin in Cornwall and lead in the Mendips, he was accompanied by his great-nephew, the boy Jesus. Finally, they ". . . came in a ship of Tarshish to the Summerland (Summerset, or Somerset, the 'land where summer lingers') and sojourned in a place called Paradise," says an old record.

Paradise, as we have seen, is regarded by many as the starting point for the journey to Glastonbury, and from thence on up to the Mendips. Paradise is consequently closely identified with Celtic Glastonbury, once an island of the fens. It was to Glastonbury, then, after Jesus's Passion, that Joseph is thought to have brought his miraculous staff and the sacred chalice. There also, he is said to have founded the Wattle Church which later became the great Abbey; and there, in the Church of St. John, is his reputed tomb.

Thus, the Glastonbury Legend continues through the centuries, as a reality in the lives of England's West Country people. And Glastonbury is thought of as "the holyest erth of England," while the Thorn blooms each Christmas as a symbol of Christ's faithfulness to generations of believers.

Twelfth Night, Twelfth Day Eve, Epiphany Eve, Old Christmas Eve

January 5 and 6

Twelfth Night (also known as Twelfth Day Eve, Epiphany Eve, and Old Christmas Eve) has not been celebrated extensively since the mid-nineteenth century. For all that, many scattered reminders of the old revels, and the still older beliefs concerning the festival, have survived to modern times.

Ceremonies of cutting the Twelfth cake, wassailing fruit trees, caroling from house to house for goodies, belief in the miraculous blossoming of thorn or bush, of animals that kneel and bees that sing, are a few of many picturesque customs still associated with the season.

Before the calendar change of 1752, Twelfth Night was celebrated on a gigantic scale. In those days, a Twelfth Night cake was universal. The cake, baked with a bean and a pea inside, was washed down with generous draughts from the wassail bowl, which brimmed with "lamb's wool," or ale, well seasoned with sugar, spices and roasted apple pulp. Friends and relatives assembled, to dine sumptuously and then cut the cake. Whoever found the bean in his portion was proclaimed king of the revel, while the person getting the pea was queen. In modern times the cake, as will be seen, still plays an occasional role in Twelfth Night festivities.

Wassailing the fruit trees is an ancient fertility rite, still practiced on Old Christmas Day in certain areas. As in olden times, the farmer and his helpers carry jugs of cider to the orchards. There, surrounding one of the best-bearing apple trees, they offer toasts to its health.

Some West Country folk who stubbornly adhere to the Old Style calendar, still maintain that Old Christmas Eve is the "true" anniversary of Christ's birth. In Cornwall and Devon, people still say that at midnight oxen, horses, and sheep fall on their knees in adoration of the Christ Child, while in Hampshire and Lancashire, the leaves are said to rustle on trees at twelve o'clock, just as the Holy Thorn bursts into bloom. Bees come singing from hives and all living creatures rejoice in the Sacred Birth. For, as in Shakespeare's time:

Some say that ever 'gainst that season comes
Wherein our Saviour's birth is celebrated,
The bird of dawning singeth all night long;
And then, they say, no spirit can walk abroad;
The nights are wholesome; then no planets strike,
No fairy takes, nor witch hath power to charm, So hallowed and so gracious is the time.

The Sword Dances The Yorkshire

Usually in early January, sometime between Christmas and the New Year

The Sword Dances, which with a few exceptions are found chiefly in the northeastern counties of Northumberland, Durham and North Yorkshire, are thought to have possibly originated in the folk dances of the Danes who occupied this part of England over a thousand years ago. The dances, similar to those of many other European countries, are traditional to the midwinter season.

The Sword Dancers appear sometimes at Christmas, sometimes at the New Year, to perform dances which folklorists think symbolize the conflict between dying winter with the quickening forces of spring. The dancers themselves--simple workingmen--are unaware that the theme they present is common to primitive people of every land. For centuries the men, their sons and grandsons, have made village rounds and presented a crude play, distinguished by stock characters such as the Fool, or Medicine Man, the Woman (a man, dressed in feminine attire), Beelzebub with his club, and a hobby horse. The beheading of the Fool, and his subsequent resurrection and restoration to youthful vigor, follow ancient folk rites which represent Winter's death and the resurgence of Spring.

The Yorkshire perform"s traditionally employ a long steel or wooden sword, while those of Northumbria (as the counties of Northumberland and Durham are called), generally use the short, flexible steel sword which closely resembles a workman's tool. The technique of the Northumbrian dance features highly complex, close formation, "stepping" or rapid tap dancing, and elaborate sets, ending with a locking of the short swords.Some of the traditional Sword Dance teams which are well known are:

1. The North Skelton and Lingdale Teams of Yorkshire. Both of these groups are composed of ironstone miners who, when unemployed after World War I, revived their ancient county dances and presented them in various North Riding villages, to raise funds to support themselves and their families. The two teams, which were organized independently of each other, are active in the mining area of Cleveland.

The North Skelton dancers have no distinctive costume but generally dress informally in white or colored shirts or tunics.

2. The Handsworth Dancers of Yorkshire. There are eight men in this group from Handsworth, near Sheffield. Although costumes vary among all the dancers from time to time, the Handsworth dancers have long been distinguished by lambswool caps which are dyed red on one side and left white on the other.

3. The Grenoside Dancers * of Yorkshire.

4. The Plough Stots † of Goathland and Sleights, Yorkshire.

5. The Flamborough Head Dancers of Yorkshire. The dance of this team of eight men from the fishing village of Flamborough Head is done rapidly and with great skill, in spite of the heavy fishermen's boots that are worn. The dancers link their wooden swords, which are held in the left hand, as they perform figures suggesting the operations of net making. The costume of the men usually includes blue jerseys and caps, in addition to the boots already mentioned.

6. The Royal Earsdon Sword Dancers of Northumberland. This team, composed of miners, is said to be one of England's most distinguished. The costume generally consists of white shirts and crimson jackets and breeches.

New Year's Eve Allendale's townsfolk

Allendale is a tiny community some fifteen miles southwest of Hexham. The village, which is built about a market place, is surrounded by magnificent Northumbrian scenery--pastoral toward the valley of the River Allen, bleak and forbidding toward the lonely moors. Against this dramatic backdrop, men and women have welcomed the New Year with ceremonial fires and dances for at least eight hundred and fifty years.

On New Year's Eve Allendale's townsfolk hurry towards the square to build a great bonfire. Meanwhile, a band of guisers dressed in all sorts of rag-tag fancy costumes makes village rounds and receives hospitality at different homes. Although all the performers are men, some dress in women's clothes. At each home, the men put on a rough-and-ready show in return for abundant New Year's cheer.

Shortly before midnight the misers troop into the square, which already is filling with people from far and near. Quickly a procession forms. First comes the Braes of Allen Band, then blackenedfaced youths (the number varies from year to year) supporting on their heads trays filled with tar lighted by a torch from last year's bonfire. Bringing up the rear are dancing townsfolk, who joyfully follow the long procession as it leaves the square and winds through the ancient village streets.

Now it is almost midnight. The burning tar is too hot to carry longer. The procession returns to its starting point and circles the bonfire from right to left. Suddenly the youths hurl the tar upon the huge pile, which bursts into flame against the black winter sky. The village chimes strike twelve. The band starts up a dance tune. Shouts of joy break from the crowd. Friends and neighbors congratulate each other and exchange good wishes for a happy New Year. Young and old dance deliriously about the flames. Allendale salutes the New Year. Not until the last ember dies do villagers disperse to thier own homes, or go "first-footing" to the neighboring farms scattered throughout the dale.

Even during the blackouts of the Second World War, Allendale observed its traditional ceremony. The bonfire, it is true, was lighted under an iron canopy, and candies, burning in darkened jam jars, were substituted for the trays of blazing tar. But in spite of wartime safety restrictions, the continuity of Allendale's ancient festival of fire remains unbroken from pagan to modern times.

English Festivals: New Year's Day

In many towns and villages of northern England the New Year, and sometimes Christmas also, is "let in" by a dark-haired man or boy, called "First-foot," or "Lucky Bird." Nobody should leave the house until First-foot arrives, thus establishing good luck to the household for the coming year. Most people agree that a woman, a squint-eyed, or a flat-footed person is unlucky. Light, or sandyhaired men are generally unpopular, since Judas Iscariot was thought to have had red hair!

First-foot often carries gifts into the house, such as something green (but not dead), a lump of coal, or a loaf of bread, so that the household may have good luck, warmth and plenty of food during the next twelve months. In Yorkshire's mining area I know a man who, on New Year's Eve, always wraps lumps of coal in bright blue, green or red paper, and leaves one piece at midnight with each of his cronies. From year to year, the recipients cherish the coals which, on no account, may be burned or cast aside. First-foot always is heartily welcomed with a glass of ale, a piece of Yule spice cake and a bit of cheese.

In many Staffordshire villages the family head (if dark-haired) leaves the house just before midnight, while church bells are tolling the old year out. Then, just as the chimes begin their joyous pealing, he returns, "bringing the New Year in" through the open front door, and "letting the Old Year out" by the back. All the womenfolk are kissed, congratulations exchanged, healths drunk and little mince pies eaten. For Staffordshire, Shropshire, and some other counties claim that the Twelve Days between Christmas and January first mirror the coming year, and a person will have one happy month during the next twelve for each mince pie he eats at a neighbor's home. It is small wonder then, that village wassailers, acquaintances and friends visit constantly from house to house during Yuletide, and that hospitality flows as freely as good wishes and congratulations.

New Year's Day in rural England, as in many other countries, abounds in signs and portents. Each county has its own quaint sayings and folk superstitions to safeguard the family welfare for the next twelve months.

In Lancashire, Lincolnshire, and some other places, for example, people say it is unlucky "to give away a light from the house" on New Year's Day, while elsewhere it is generally thought that bad luck results from taking anything out of the house before bringing something in! To carry in something green means plenty of bread, but to carry in bad news, results in sure disaster!

In Cornwall, to pay out money on January 1 means you will be passing it out for the next twelve months, while in Devonshire a handsel, or gift, of something sweet, must go to the bees, if there is to be plenty of honey during the coming year. Of course, washing on New Year's Day may "wash a friend away," while sweeping towards the door instead of the hearth, takes out every bit of luck!

On New Year's Day every one does well to watch his ways. For the beginning of the year is the time for remembering old customs, old ceremonials and old superstitions, many of which--quite unknown to persons who do so--originated in the midwinter rites of pagan times.

Law and Politics under the Constitution

If law consists of rules that are subject to enforcement by the State and if politics is the process by which public policy is formulated and executed, then law is a product of the political process. The institutional structures that declare and enforce the law would have no authority to do so but for the political action, creating that authority, of those who wield power in a particular society.

Drafting the U.S. Constitution, for example, was a political act. It was the product of activities designed to create a framework for formulating and administering public policy. The document itself is a legal document.

It provides the foundation for our legal order and is "the supreme law of the land." This legal document, which was produced by the political process, channels, in turn, the subsequent exercise of legal and political power. It prescribes how the officers of the government shall be selected, what powers they may exercise, and what procedural and substantive limitations are placed upon the exercise of political power.

What Is Politics?

Politics, wrote the late Professor Frank Goodnow, "has to do primarily with the expression of the State will,... secondarily with the execution of that will." In essence, politics covers the broad realm of individual and group activities, whether of private or governmental origin, which constitute the process of influencing, formulating, or administering public policy. Included in the data of politics, according to David Truman, "are the behaviors of participants in the government, whether or not such activities fit the specifications of the legal blueprints...." Material bearing on the role of courts and judges in formulating policy of the State thus provides one kind of political data.

What Is Law?

The interrelations one finds between law and politics depend, to some extent at least, on the matter of definition. If one views law as "natural law," for example, he might subscribe to a definition like Aristotle's: "The law is reason unaffected by desire." Under such circumstances, politics has no effect on the content of law. For whereas politics offers an institutional process for the fulfillment or channeling of desire, law is isolated from desire and confined to the realm of reason. The only formal actions of politically organized society that could be termed law would be those conforming to the predetermined norms defining reason. Thus law might restrict the scope of politics, but politics could not determine the content of law.

If one were to take a sociological view of law, such as Ehrlich's, then "the great mass of law arises immediately in society itself in the form of a spontaneous ordering of social relations." Again, law does not depend upon politics, since, by definition, law arises spontaneously and precedes the establishment of political institutions. The political institutions might or might not reflect the spontaneous social relations that constitute law. In any event, as in the case of natural law, the content of law would be determined outside the political process.

When the term law is used in this study it is not used either in the sense of natural law or of sociological jurisprudence. It means positive law or the law declared by the organs of the State. Although concepts of reason, morality, and social custom may serve as sources of the positive law, they do not, of themselves, constitute law. Norms of reason, morality, or custom become law only through the operation of the institutions which have been established by the State or legal order. Hence the view of law asserted here is the traditional positivist view of men like Austin, Holland, and Kelsen. Law consists of general rules of external human action subject to enforcement by the coercive authority of the State or legal order.

The Self-Confirming Myth of Legal Education

Is there anything the law schools do to facilitate this, or is it a purely accidental connection? I have elsewhere described the so-called legal mind, as selected and turned out by the best national law schools, as the nonlegalistic mind: the mind that has learned skepticism of abstractions and yet at-homeness with them. 9 The atmosphere of such schools, moreover, may help narrow the range of curiosity for some of the more humanistically oriented, but, unlike what sometimes happens in graduate school to social scientists, law students do not become more stupid and more cowed than they were as undergraduates. Or perhaps I should qualify this, bearing in mind the loss of curiosity and breadth of perspective that one often finds as students "progress" from their first to their final years in law school, especially if they are gifted but neither make the law review nor get involved in legal aid work. I should say instead that law students may get more stupid in the sense of a constricted Weltanschauung, more ready prey to a fundamental complacency; but at the same time they are apt to gain in confidence and craftsmanship.

This is a somewhat different process from that at work in comparable graduate schools, at least in the social science departments. Students in the latter emerge often less confident than they entered, less "promising." Just as they seldom get their doctoral degree within a regulation three or four years, but remain instead in an amorphous zone of delayed maturity; so they sometimes (unlike most law students) reach for an identity by incorporating a professor's definition of what they "are," while being subjected to his personal view of the "field" in grading, in thesis supervision, and orals. In contrast, law students do not to the same extent find their identity as lawyers by "incorporating" their professors, who may or may not qualify as practitioners as well as teachers; and the system under which the law students operate is far more impersonal. People do get through law school in three years; there is very little of the protracted uncertainty of much graduate study, or of the umbilical clinging to one's teachers that failure to finish a thesis permits. This happens, in part, because law professors, whether full-time or part-time, are more worldly and better paid than most social scientists; they are intelligent, but rarely intellectual; student devotion is nice, but they have alternative ways of "spending" their affects, and relatively little need constantly to prove the validity of their profession or their specialty through the shining eyes of indoctrinated students. The validity of their profession is only marginally in question: its success is historically solid and daily attested in the market place of American careers. Although, to be sure, sensitive lawyers and law professors suffer because of some popular disesteem for lawyers and because they realize that some of this disesteem is deserved, it seldom shakes their belief in the legal career as such, but rather reinforces their belief in a variant model of it, such as the Brandeis-at-the-bar model, or the small-town independent lawyer model, or that of the crusading government lawyer.

Intellectual craftsmanship in the law, moreover, is a fairly visible and surprisingly unidimensional thing, so that law professors (with whatever unconscious injustices) can evaluate each other's competence rather readily, as mathematicians are said to be able to do, or organic chemists.

The Coercion of Images

Why is it, when lawyers and sociologists confront one another -- though they would scarcely do so save peripherally if they were not in some measure marginal in their own guilds -- that they do so as "representative men" of each? By assuming that their opposite number is central in his discipline, do they seek a firmer identity in their own? There is a tendency to talk about the law, the lawyer, the sociologist, very much as Americans abroad can hardly help being viewed as the American. It seems to me that mutual acculturation might begin with a more pluralistic set of images.

Sociologists tend to put lawyers in the role of the model lawyer, with a model constituency of people and problems. As seen from within, however, the legal profession is striking for the amorphousness of its boundaries, in comparison with the image of the "real doctor" operative among medically trained people. The ideal of the "real doctor" is so coercive an image that a man who, let us say, is an M.D. and a pathologist, or an M.D. and a hospital administrator, or an M.D. and a public health man, or even an M.D. and a research clinician who does not have direct dealings with patients, is not considered fully a doctor. He is apt to feel bad about it, and to make the same sort of apologies that a dean may make to professors about being a dean. To be sure, lawyers do not completely lack comparably coercive images. One finds them operative in house counsel (that is, full-time salaried employees of an insurance company or other corporation) who feel themselves not quite lawyers, not quite independent professionals; one finds them occasionally in the government lawyer who has never tried a case and never had any of the appurtenances of starting at the bottom, but who went straight from law school to the FCC; one finds them in the law professor who is at once pleased and a bit embarrassed if somebody brings him a trespass case or divorce case (I am talking of course about the full-time law professor), giving him the feeling that he has been initiated as a real lawman.

Sociologists have often operated with an image of lawyers as men concerned with sanctions, with the enforcement of rules. This all too uncomplicated definition must make the lawman restive. For, as already indicated, the law-trained person is likely to be found almost anywhere in the American social structure.

Recruitment, Training, and Colleagueship

The different patterns of recruitment into law and into sociology and the different experiences of students and practitioners in both milieus are critical factors bearing on the relation between the two fields.

I cannot here delineate the immense variety of academic climates but will confine my comparisons to the leading law schools and graduate schools, respectively, and even within this group to a small minority of "national" schools. Non-lawyer readers should realize that the differences among law schools. As legal education at the state university level improves and becomes more professional (with law professors increasingly taking graduate work in law at Harvard or Columbia), there is a pull towards "nationalization," which is also reflected in the upgrading of the law reviews. But the parochial pull in the other direction remains powerful, tied up as it is with the social mobility of disadvantaged groups, with the power of the local bar over bar examinations and admissions, and with the parochialism built into state decisions and courthouse folkways.

Sociology is not now prepared to embrace the legal order within its own categories in terms sufficiently detailed and concrete to shed new illumination. There is not only a certain intellectual impenetrability about the law, reflecting and resulting from the achievements of generations of jurists; there is an even more important factual impenetrability resulting from the sheer overwhelming and opaque bulk of data that must be mastered to link the empirical with the interpretive or the ideal-typical. And in the law, and even in its manifold branches, there is nothing so lucid, so condensed, so truly theoretical, as classical price theory in economics.

Institutional Analysis

As an institution of society, law regulates social interaction, thus minimizing overt and covert conflict. In order to perform this function a legal system must solve four problems: legitimation of rules, interpretation of rules, application of sanctions, and determination of jurisdiction. How it does so is largely a function of its relation to other institutions of society. The analysis of the manner in which a legal system solves these problems, we suggest, may provide a fruitful basis for the comparative study of legal systems.

A crucial problem posed by this mode of analysis is the relation between one institution and any other institution within the social structure of a society. Law is a unique type of institution in that its complex of norms and organizational structures cross-cuts all other institutions in a society. The degree to which the structure of law is a function of any one institution or combination of institutions, on the one hand, and an instrument of change in other institutions, on the other hand, is still inadequately understood.

Normative Analysis

A normative-analysis approach to the sociology of law may sound very familiar to the legal scholar, but what we designate as "normative analysis" must not be confused with the traditional "doctrinal" analysis of the legal scholar or with the philosophical sense of an assertion of a value judgment. This approach entails an analysis of legal norms in relation to their underlying values and to the social units or status groupings that are the objects of legal norms. In sociological terms, two levels of analysis are involved: the analysis of some facet of the "culture" of a society and the analysis of some facet of the "social organization" of a society.

With the aid of this approach it would in principle appear possible to discover how legal norms are reinterpreted and transformed over time. Such an analysis requires, at the very least, an inquiry into (a) changes in the hierarchy of values in a society as reflected in the legal system and (b) changes in power and prestige of the social units or statuses affected by the legal norms. As these two types of changes occur, we would expect "legal personnel" -- whether judges, legislators, or others-to reevaluate and restructure legal norms.

Throughout much of the history of labor law in the United States the value rationale of court decisions was in terms of individualism as expressed in the doctrine of freedom of contract. The competing values of equality and pluralism occupied a position subordinate to that of individualism; hence freedom of association was accorded less importance than freedom of contract. With the growth of trade unionism there has been a gradual increase in the power and prestige of workers. This change in status of workers vis-U+00EO-vis employers was registered in the legal system through the enactment of legislation institutionalizing the right of workers to organize for collective bargaining, thus elevating the values underlying freedom of association above those underlying freedom of contract. As the right to organize collectively is established, it, in turn, leads to conflicts of interest between the trade union and its members, on the one hand, and the trade union and the "public," on the other. These conflicts, as discerned by judges, officials of administrative agencies, and labor arbitrators, result in a subsequent delimitation of the rights of trade unions. Blumrosen's analysis of the process whereby "rights" and "interests" come into conflict has implications for empirical research and provides the raw materials for the development of theoretical propositions about the nature of conflict in general and conflict in labor-management relations in particular.

Organizational Analysis

That every legal system has recourse to some organizational structures in discharging its functions is quite evident. The nature of the organizational structures of courts, legislatures, administrative agencies, and enforcement agencies helps determine the kinds of legal norms that develop, the type of interpretation and enforcement of norms, and, in short, the impact of legal norms on people's behavior.

The organizational-analysis approach is illustrated in the essay by Evan on the legal structure of public and private organizations. Attention is drawn to analogous structures and functions in public and private legal systems, which, in turn, point to potential interrelationships among them and to their consequences for the growth and transformation of law.

The interplay between changes in legal doctrines and changes in organizational structure is analyzed by Blumrosen in an essay on labor law. As trade unions have grown more powerful in comparison with employers, their legal status has changed from that of a criminal conspiracy in the early nineteenth century to that of a legally equal party in collective bargaining relations in this century.

The courts, in fashioning common law with respect to the employment relationship, were prone to restrict the right of workers to organize into trade unions; legislatures, on the other hand, more responsive to the pressures from labor, slowly moved in the direction of institutionalizing the right of union organization. If the jury is viewed as an organizational subunit of the structure of the court, these studies, and possibly others stemming from this Project, may be interpreted in terms of the impact of extraorganizational statuses and values on the behavior of individuals in such social structures.

Sociology of Law A role-analysis

A role-analysis approach to the sociology of law focuses on "legal statuses," that is, on the various types of personnel performing recurrent functions of legal systems. In literate societies these statuses include, among others, judges, lawyers, legislators, administrators, policemen, and jurors. It would seem that for the sociologist with relatively little knowledge of the technicalities of legal systems this approach to law is most hospitable. This is particularly true of sociologists interested in the sociology of occupations. With the exception of the juror, who performs a transitory function not involving an occupation in the legal system, all other statuses mentioned are a source of livelihood for the incumbents. Hence they lend themselves to the study of an array of sociological questions on recruitment, socialization, colleague relationships, codes of ethics, and so on. Nevertheless, relatively few sociological studies have thus far been conducted concerning the legal profession or any of the other legal statuses in the United States or in any other literate society.

Still conspicuously lacking in the role-analysis approach to the sociology of law is an effort to relate an analysis of "legal statuses" to the normative and organizational components of legal institutions. In this respect Weber's analysis of the relationship between type of legal training and degree of codification in law still stands as a pioneering effort.

Income and the Location of Practice

A WISE CHOICE of a profession may improve an individual's chance of earning a good livelihood; it cannot guarantee him success. The attempts of numerous individuals to choose wisely limit the opportunities for profiting by a wise choice and tend to equalize, not incomes, but the "whole of the advantages and disadvantages" of different professions. In addition, as we have seen, the incomes of men who practise the same profession differ widely. Some attain a professional status that enables them to sell at attractive prices all the services they care to render; others find it difficult to sell their services even at low prices.

The factors that determine a professional man's income are numerous and varied. Some, like profession, give rise to differences that the forces of competition continually tend to obliterate. Others, either by their very nature or for institutional reasons, give rise to differences competition alone cannot touch. Few are susceptible of quantitative or objective evaluation. How can we measure 'personality', the influence of family and personal connections, and the like? Finally, there are the many factors of which we are ignorant; these we usually combine with the ever-present element of 'pure luck', under the convenient heading of 'chance'.

Changes in the relative economic advantages of different professions are reflected primarily in the number of young people who each year start to train for them. Changes in the relative advantages of different localities, on the other hand, are reflected in the geographic distribution of both young people just beginning practice or training and persons already in active practice. However, the difference between professional and geographical mobility is probably not great. The uncertainties attached to beginning anew elsewhere, the capital needed to cover living expenses during the period of adjustment, and the direct costs of moving combine with inertia and habit to keep professional men from moving to new and possibly more advantageous locations. These obstacles are especially serious for men in independent practice because of the capital value represented by an established practice, and the inevitably low level of earnings during the initial period in a new location. The individuals who have fared poorly in their present location have the greatest incentive to move; but they are least likely to have the necessary capital. Those who have done well will probably have less difficulty in procuring capital, but they have less to gain and more to lose by moving. Consequently, new entrants probably play almost as large a role in adjustments among localities as in adjustments among professions.

The Five Professions Studied

THE OCCUPATIONAL HIERARCHY progresses by slow steps from the completely unskilled laborer to the specialist who has spent a considerable part of his life preparing for his work. Each step merges into the next and overlaps it. Somewhere toward the upper end of this hierarchy is a group of occupations that we designate 'professional'. Its boundaries are neither precise nor stable. A century ago the 'learned professions' meant medicine, law, and theology; today they include a host of other occupations; and a century hence they will include still others. These occupations are alike in that all require prolonged and specialized training and involve work that has something of an academic and intellectual flavor--no purely mechanical or commercial pursuit can qualify. They differ in almost all other respects. By common consent, the professions include pursuits as diverse as journalism and medicine, architecture and law.

While all professions require specialized training, there are sizable differences in the amount of training required and in the extent to which the requirements are formalized. Practically all professions require at least the equivalent of a college education; some require no more than that; others require the completion of professional school after college. A growing number of professions are restricted to persons 'licensed' by the state; and candidates for licensure must ordinarily satisfy minimum educational requirements and demonstrate an acceptable level of competence. In other professions not under state licensure, educational requirements are a matter of custom.

The five professions that we study intensively--medicine, dentistry, law, certified public accountancy, and consulting engineering--exemplify these differences. Most persons entering engineering have had only a college education; most persons entering medicine, a college education plus four years of medical school plus one year of internship in a hospital. Four of the five professions are under state licensure; the fifth, engineering, is not.

Federal Protection of Civil Rights

The meaning and purpose of these Civil War Amendments has been the subject of much controversy. But one can build a strong case contending that their congressional framers meant them to serve as a basis for a positive, comprehensive federal program -- a program defining fundamental civil rights protected by federal machinery against both state and private encroachment. 5 Perhaps the best evidence supporting this contention is that during and just after the period when the Amendments were framed, Congress passed seven statutes establishing just such a federal program. There were members of Congress who argued against the constitutionality of this program and voted against the bills, just as there were members of Congress who opposed the three Amendments. But the Amendments and statutes received the necessary majorities in both houses of Congress. The significance of the nearly simultaneous action of Congress in passing the three Amendments and seven statutes implementing them cannot be overlooked....

Five of the statutes by which Congress tried to implement the Civil War Amendments were general civil rights acts. The first of these was the Act of April 9, 1866, which was passed at a time when only the Thirteenth Amendment had gone into effect. Known as the Civil Rights or Enforcement Act, it was entitled "An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication." The Act was aimed at outlawing the "Black Codes," enacted by the southern states immediately after the close of the war, which restricted the movement and occupation of Negroes. It provided that all persons born in the United States were citizens thereof, and it endeavored to place members of all races on an equal basis as to their rights "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property." The federal courts were given exclusive jurisdiction of cases arising under the Act, severe penalties were prescribed for its violation, and the President was empowered to use the land and naval forces to secure its enforcement.

The second Civil Rights, or Enforcement Act, was passed by Congress on May 31, 1870, and was entitled, "An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other purposes." This second statute was amended by an Act of February 28, 1871. The general purpose of these two acts was to make the Fourteenth and Fifteenth Amendments effective. More specifically, they were designed to protect the right to vote by providing federal machinery to supervise elections in the states. Severe penalties for any interference, based on race or color, with the exercise of the right of suffrage at federal or state elections were provided. In addition, it was made a felony for two or more persons to conspire to interfere with the free exercise by a citizen of any right granted to him by the laws or Constitution of the United States.

Fifteenth Amendment 1870

SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.

Fourtheenth Amendment 1868

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Thirteenth Amendment 1865

SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2. Congress shall have power to enforce this article by appropriate legislation.

Historical Development of Federal Power

Prior to the Civil War there had been little or no effort to invoke the authority of the Federal government in protection of the right to security of the person. Indeed the Constitution seemed to afford no legal basis for such intervention. It might have been possible to predicate Federal power upon the Bill of Rights, embodied in the first eight amendments, but the Supreme Court squarely held in 1833 that the Bill of Rights imposed restrictions only upon the Federal government, not upon state or local governments or their officials, or upon private individuals. Barron v. Baltimore, 7 Peters 243, 8 L. Ed. 672 ( 1833). This ruling has never been seriously challenged.

Another source of Federal power might have been the privileges and immunities clause in Article IV, Section 2 of the Constitution. This provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." See Corfield v. Coryell, 6 Fed. Cas. 546, No. 3230 (E.D. Pa. 1823). But this provision has now been interpreted to require only that no state may deprive a citizen of another state of the "privileges and immunities", whatever they may be, enjoyed by its own citizens. Thus even if the phrase "privileges and immunities" were interpreted broadly, which it has not been, the provision would afford protection only for discrimination by states against citizens of other states. Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394 ( 1873); Rottschaefer, Handbook of American Constitutional Law, pp. 123-34 ( 1939); Hale, Some Basic Constitutional Rights of Economic Significance, 51 Col. L. Rev.271, 288-304 ( 1951).

In the aftermath of the Civil War, however, the country turned sharply in the direction of invoking Federal power for the protection of rights to security of the person. In the Thirteenth, Fourteenth and Fifteenth Amendments, and in the Civil Rights Acts, there was created the basis for a vast expansion of Federal authority.

An Establishment of Religion in the Schools

In certain cases to be discussed the Supreme Court deals with questions determining whether governmental action involving only a limited number of citizens had been in violation of the First or Fourteenth Amendments. In the other cases, the Court deals with questions of more direct concern to the citizenry as a whole. These latter contests turn more specifically upon the principle of "separation of church and state." The use of public funds for sectarian advantage is the predominant issue. (Private non-sectarian schools may come within the meaning of the statutes contested and of the case law resulting, but none appear to have involved themselves in the question.) The fact that we have parallel systems of public and parochial schools serving the citizens of a nation wherein education is compulsory has lent complexity to the problem.

Education in early colonial America, even where supported by public funds as in Massachusetts, was in large measure religious. That a system of free, secular, and tax-supported education had developed in the United States around the middle of the nineteenth century was possibly an outcome of Protestantism and its diversity finding accommodation in developing democratic dogma and in our expanding nation. But, the Catholic Church, strengthened by floods of immigrants to America, could not, in conscience or in fact, surrender its assertedly rightful function of education to the increasing public schools--schools which to Catholic eyes either shunned any religious training or else afforded it only with a Protestant taint. The resulting growth of parochial schools supported by Catholics left them feeling unjustly burdened by the requirement of contributing also to the support of public schools from which they received no direct benefit. They began to insist that those of their schools which met the accreditation standards and satisfied the compulsory school laws of the state should receive public aid.

Religious Freedom

Much of the immigration to British Colonial America was composed of Englishmen and continental peoples seeking escape from religious persecution in their homeland. Yet, being almost if not entirely the captives of their age, toleration was a concept largely unknown to them. The stories of Roger Williams and of Anne Hutchinson, expelled from their colonies, and of Quakers and Baptists tied to carts and dragged through colonial towns to be lashed by the populace, is testimony that the majority of the colonists were as insistent upon a special brand of religion as had been their own oppressors. But ultimately, perhaps because of the very diversity of sects and the inescapable necessity of living and working together, the tolerance of religious freedom preached by Williams and practiced in Rhode Island was generally recognized as desirable--so much so that an express safeguard for religious freedom was demanded and secured in the First Amendment.

Under that safeguard the right to hold whatever opinion on religion that one may wish has hardly been challenged. But when opinion turns to practice state authority may prevail. Jefferson, in his "Act Establishing Religious Freedom" in the state of Virginia discusses the distinction. He wrote, in part:

. . . to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty. . . . it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. . . .

As noted earlier, most of the few Supreme Court decisions on religion in the nineteenth century were in support of the above principle. Such cases could come before the Court only from territories subject to Congress, or from contests wherein a determination of state or federal function was required. Not until the Court interpreted the Fourteenth Amendment's "due process of law" clause as constituting a safeguard against invasions of religious liberty by states were many religious cases likely. The decisions bearing on religion during the last fifteen years have been more numerous and probably more productive of important case law than were all the preceding cases involving religion.

The Fourteenth Amendment and the Bill of Rights

Following the Civil War a possibility that the guarantees of the Bill of Rights might be extended to the states by the final sentence of Section One of the Fourteenth Amendment became the subject of bitter controversy. The sentence follows:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Many persons understood this as intending that the "privileges and immunities" mentioned were those specified by the first eight amendments, and that the Supreme Court would hold any state interference with them to be in violation of the Fourteenth Amendment. However, many decades were to elapse before the court was persuaded to this view. For, from the Slaughterhouse cases in 1873 until the present, the Court has resisted making express equation of all the civil liberties in the Bill of Rights with the "privileges and immunities of citizens of the United States." Since the 1930's the number of liberties which have been so equated has been increased by certain decisions. Notable among such decisions are those in "education cases" to be described hereafter.

Likewise, persons who had expected that the clause "nor shall any state deprive any person of life, liberty, or property, without due process of law" would be accepted by the Court as including civil liberties covered in the Bill of Rights were also destined to wait nearly as long. But in this aspect there were more dissenting opinions among the justices than appeared in cases turning upon the "privileges and immunities" clause. In 1923, and again in 1925, in the cases respectively of Meyer v. Nebraska and Pierce v. Society of Sisters the Court began to bring the Bill of Rights under the extended protection of the "due process" clause. Although the trend is only somewhat more complete in the "due process" aspect than in the "privileges and immunities" aspect, the principle of federal defense against invasions of civil rights in general by the states seems now to have become well established. Those of the decisions affecting education included in this chapter and which are dated later than 1922 have contributed to this principle in one or both of the aspects.

The Bill of Rights

"Bills of Rights are for the most part reactions against evils of the past rather than promises for the future." Many of our revolutionary forefathers in the new nation could recall from bitter personal experience the memory of civil rights recently denied them. Moreover, they could review the record of struggles over such rights scattered through centuries of English governmental practice. Yet the framers of the Constitution appear to have given little thought to a bill of rights. Late in the convention it was, however, suggested that a bill of rights "would give great quiet to the people," but a motion to appoint a committee to prepare such a bill was defeated on the grounds that it was unnecessary and impracticable. "Who," Pennsylvania's delegate, James Wilson, once wanted to know, "will be bold enough to undertake to enumerate all the rights of the people?" It was no doubt pointed out at the Convention that scattered clauses already included in the Constitution safeguarded certain individual liberties.

Subsequently, in the Federalist, Alexander Hamilton continued the discussion in a vein approaching sophistry. He pointed out that the Constitution was not a reservation of rights in a compact with a prince but was a sovereign act of "WE, THE PEOPLE," done on purpose to "secure the blessings of liberty to ourselves and our posterity." This, Hamilton maintained, was a "better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."

Nevertheless, at the insistence of certain of the ratifying states, the first Congress under the Constitution submitted twelve amendments to the states. Ten of these were ratified and thus incorporated into the Constitution. The first eight are commonly called the Bill of Rights. They were based, whether taken in the historical or the rhetorical context, upon the attitude that government was the enemy of freedom. It was against government and government alone that these safeguards were interposed. Only the central government was limited thereby. This is manifest in the First Amendment by the inclusion of the word "Congress." Although the remaining amendments composing the Bill of Rights are rendered less specific by the omission of this word, there is little reason to doubt the historical evidence that their framers intended that they be interposed just as exclusively against usurpation of traditional liberties by the Congress alone. The omission did make it possible to argue that these guarantees were restrictions on states as well as on the central government, but Chief Justice John Marshall was enabled to put an end to the controversy for a time by an opportunity presented in the last decision he handed down. Referring to the Bill of Rights in the case of Barron v. Baltimore in 1833 he said: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them."

Thereafter, for a century, in the case of religion at least, "Congress had little opportunity and less inclination to violate the First Amendment, and what the states did by way of dealing with religious matters was their own business so far as the federal Constitution was concerned." Thus there were few Supreme Court decisions dealing with religion or bearing religious connotations until after World War I. The "Mormon cases" in the last quarter of the nineteenth century afford an exception. In one of these, Reynolds v. United States, the Court held that the religious liberty guaranteed by the First Amendment does not include the right to commit immoral or criminal acts, i.e., polygamy, even though such acts are sanctioned by religious doctrine.

Law School Offers What?

We have had enough of technical stuff which you are supposed to need, or at least to hear of, in order to make your case class go. It is time to go back to where we began, and to take bearings once again on what it is all about. I propose to take observations with you along three different lines. First, what is the orientation of the school with regard to the profession? What does it offer that you need? Why does it offer some things and not others? What do you need for your practice which it does not offer? To which the answer is: almost everything you will need for your practice. And, as inescapable, I shall have something to say on how to stay in the school. Tomorrow, a second line of observation: what of the law in reference to our civilization? What is it worth? How did it get that way? What does it add? In part derived from the first two, there is a third line worth pursuing as we close these lectures: what are the possibilities in studying law? To what end? What is there in the study worth the having?

Now to the school, and first, to the curriculum. What is its aim? We have already seen that it has two aims at least. One is to equip you for the practice, the other to equip you for itself. Let me begin with equipping you for practice.

And there, I suppose, the first thing which occurs to you, as the first which would normally occur to any man, is that you need to "learn the law". That you need information, knowledge; that you become the repository of the rules. I am Sir Oracle--and when I ope my mouth let no dog bark. Would, gentlemen, that we could make you so! But between us and the making stretches, looms, a bulk of learning which three years can never compass, which, I think fair to say, no life-time is enough to compass. Any system of law bulks large enough. The law of a high civilization bulks out of all understanding. Our own law is the regulation of the clashes of interest in a society so complex we gasp before it. Even then, there might be some hope of learning much of it--for rules are all abstract. Even if one has to wrestle with a dozen cases for each rule, to see its meaning, the abstraction reduces the ground "to be covered". The rules, laid end to end, no longer stretch so many miles. And so, in France or Germany, where great portions of the rules have been reduced to systematic codes, law study gallops desperately across these stretches, endeavoring to heel the aspirant on All the law. The task is made relatively easy by the fact that the codes are cleanly thought out, well-ordered books, neatly enough phrased in the main, and wide in their scope. The task is made relatively easy, also, by there being in substance but a single system of law for Germany, a single system for France. One legislature, one supreme court. And despite this, the instructors throw up their hands and pant at the impossibility of what they try. Despite this the worry grows at the hopeless overabstraction of what they teach. So much so that in Germany, for instance, a sort of legal interneship three years in length follows upon the three or four years' academic study before the young man is allowed to take up practice.

Law and Civilization

When one turns his eyes from law outward, the first effect is to make law shrink into seeming insignificance. There is so much outside. And it so obviously bears in upon and changes and remodels law itself. After a further while--so to speak as the eyes grow adjusted to the glare--one attains a truer picture. One perceives an interplay of causation between law and the world outside. One begins to suspect something of the nature of the interplay. It may have value for you, it may shorten the period of refocussing, it may indeed stir you to break the surface tension of the law and take a slow look around, if I sketch here some outline of what I think one comes to see when he sets out to survey law's relation to civilization.

By civilization I mean what anthropologists call culture, the whole set-up of society, including the ways in which we act and the ways in which we are organized, including our material and intellectual equipment and our ways of using both. As to law, you know roughly what I mean. But it is not workable to tie to a single meaning when dealing with primitive times and with our own as well. You would not have me deny the presence of law in a society merely because there were no state officials. There was an international law before League or U. N. Both law and state have grown, and grown gradually, and at times quite independently of each other. If we are to watch law's relation to civilization we must therefore watch law's development in civilization--and what we watch will be a different thing from time to time and place to place. The sole inescapable common element is dealing with disputes. The sole inescapable common focus is the relation between the ways of dealing with disputes and the other ways of living.

Hence, when I am talking of a ruder culture, before the state and the state's courts, I shall be thinking in the first instance of established ways for settling disputes without resort to violence by the contending parties, or even for settling them by violence, but by violence bridled and curb-bitted. As the state of culture concerned grows more advanced I shall be introducing other ideas commonly associated with this symbol law: e.g., the regular tribunal. As soon as a state appears upon the scene, the idea of action about disputes by the officials of the state will of course appear, and will be contrasted, say with the settlement of a strike by the mediation of a prominent citizen. And that other aspect of law, regulation by officials for greater convenience and safety and prevention of disputes, will play a part. And there will come in from the beginning the notion of some considerable regularity in anything that is done, some recurrence and predictability, and some conception that there ought to be recurrence and predictability: the ideas of precedent and rules--for these are aspects of any institution, legal or other.

What Law Business is About

What is this law business about? It is about the fact that our society is honeycombed with disputes. Disputes actual and potential; disputes to be settled and disputes to be prevented; both appealing to law, both making up the business of the law. But obviously those which most violently call for attention are the actual disputes, and to these our first attention must be directed. Actual disputes call for somebody to do something about them. First, so that there may be peace, for the disputants; for other persons whose ears and toes disputants are disturbing. And secondly, so that the dispute may really be put at rest, which means, so that a solution may be achieved which, at least in the main, is bearable to the parties and not disgusting to the lookers-on. This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.

There are not so many, I think, who would agree with me in thus regarding law. It is much more common to approach the law as being a set of rules of conduct, and most thinkers would say rules of external conduct to distinguish them from the rules of morality: be good, sweet maid, and let who will be clever. And most of the thinkers would probably say rules enforced by external constraint, to distinguish them not only from rules of morality, but also from some phases of custom, such as wearing ties and Paris garters. And many thinkers would add, rules laid down by the state, in order to distinguish them from the commands of a father, or the regulations of a university, or the compulsion to be a Democrat in Georgia. Most thinkers, too, would take these rules as addressed to the man on the street and as telling him what to do and what not to do. To most thinkers, I say, rules are the heart of law, and the arrangement of rules in orderly coherent system is the business of the legal scholar, and argument in terms of rules, the drawing of a neat solution from a rule to fit the case in hand--that is the business of the judge and of the advocate.

All of which seems to me rather sadly misleading. There is indeed much, in some parts of law, to be said for this view that "rules laid down for conduct" are the focus, quite apart from disputes. Rules that everyone's income tax return must be made out on the same type of form do not look to disputes so much as to convenience of administration. Rules as to fencing elevator shafts look primarily to avoiding not disputes, but injuries. And indeed it may properly be said that as civilization grows more complex there is a widening slice of law in which disputes as such sink out of sight, and the focus of law becomes the arrangement or rearrangement of business or conduct to get things done more quickly, more easily, more safely.

It may properly be said that in many such cases there is not even (as there is in requiring travel on the left side of the road or on the right; or in fixing the one effective form for validating will or deed) a purpose of dispute-avoidance running beside the purpose of convenience. It may properly be said, finally, that even where the purpose clearly is dispute-avoidance, that purpose in turn often sinks into the background, and men talk about contracts, and trusts, and corporations, as if these things existed in themselves, instead of being the shadows cast across the front stage by the movements of the courts unheeded in the rear. All of this, however, goes not so much to the importance of "rules" as to the non-exclusive importance of disputes. Whether about disputes, or about when wills are valid, or about the form for income tax reports, we come back always to one common feature: The main thing is what officials are going to do. And so to my mind the main thing is seeing what officials do, do about disputes, or about anything else; and seeing that there is a certain regularity in their doing--a regularity which makes possible prediction of what they and other officials are about to do tomorrow. In many cases that prediction cannot be wholly certain. Then you have room for something else, another main thing for the lawyer: the study of how to make the official do what you would like to have him.

The Lack of Rite of Passage

The life of an individual in any society consists of a series of passages from one age group to another, from one occupation to another, from one institutional membership to the next -- in other words, from one status to another. In many parts of the world, the progression from one social position to the next is accompanied by special acts or ceremonies that publicly proclaim the entry into a new status. Sometimes these ceremonies are of sacred nature, suggesting divine sanction of the new role and assuring the individual of rights and obligations that are not manmade. In all cases, however, these rites are never private acts but rather public rituals, manifesting the consensual quality of the transition.

Certain transitions are universal. Birth, puberty, assumption of adult responsibility, marriage, parenthood, death are examples of universal experiences. These and other crises in man's life are usually accompanied by culturally determined ceremonies, called rites of passage, which are designed to carry the individual from one phase of human experience to another. Although the ritual celebrations may differ in detail and manner from one culture to another, wherever they are present they serve essentially the same purpose: guiding the individual from one social position to another.

Owing to the universality of these transitions, a general similarity can be observed among ceremonies marking birth, childhood, puberty, betrothal, marriage, pregnancy, fatherhood, initiation into religious organizations, and funerals. In a sense, this regularity of transitions in man's life resembles nature, from which neither the individual nor the society stands independent. The universe itself seems to be governed by a periodicity which has repercussions on human life, influencing man's orientation in respect to the space and time dimensions. One could therefore include among rites of passage those ceremonies and festivals occasioned by celestial changes, such as the changeover from month to month (ceremonies of the full moon), from season to season (festivals including solstices and equinoxes), and from year to year (New Year's Day).

The rite of passage of particular concern in the context of adolescence is the transition from the status of the child to the status of the adult. It is popularly held that this transition is indicated, if at all, by the puberty rite. However, this assumption is an oversimplification, and it is necessary to distinguish between the rite of passage concerning physiological puberty and "social puberty." They are two essentially different and only occasionally converging phenomena.

The physical puberty of females is marked by swelling of the breasts, broadening of the pelvis, appearance of pubic hair, and, above all, the first menstrual flow. Therefore, it would seem plausible to determine the transition from childhood to adulthod by the first appearance of these signs. However, from the point of view of the social definition that is not the case, and it is rare that the young individual is ascribed the privileges and duties of adulthood at this time. The primary and often sole meaning of the onset of pubescence is that the female can now conceive and the male produce sperm.

The question of physical puberty is even more complicated for the boy than for the girl because the variability is increased by the fact that the first emission of sperm may be preceded by emission of mucus that is often unnoticed. Also, in the case of most boys, first emission occurs only as a catalytic shock whose time of occurrence depends on circumstances usually impossible to foresee or direct. As a consequence, a boy's puberty is usually established in the opinion of the public by an increase in stature, the growth of facial and bodily hair, and change of voice. But in this respect, too, ethnic and individual variations must be considered.

Many aspects, such as sexual fulfillment, marriageability, and adult responsibilities, do not depend on puberty, but may be experienced earlier or later, depending on the individual and his social environment. In American society, social puberty lags behind physiological puberty by several years, with most state laws setting the independent marriageable age at 18 for the female and at 21 for the male.

Transition from child to adult in American society is beset by more conflict than merely a discrepancy between physiological and social maturation. The real problem stems from the fact that the American culture lacks both puberty and initiation rites. Puberty, as concluded earlier, is a taboo issue and relatively meaningless in respect to marking an orientation point in an individual's life. The symptoms of physiological maturation are not accompanied by a public ritual with statusclarifying effect. Likewise, there is no definitive rite of initiation into the adult world, although it is true that a certain legal age is set for marriageability and right of franchise. However, prior to these particular privileges and obligations of adulthood, there is a partial assumption of other adult responsibilities and privileges, such as military service, entering an occupational position, driving an automobile, etc. -- all activities that are obviously of adult nature. Therefore, one cannot speak of a certain age at which the young members of our society make the transition from one to the other status. There is no one definite rite of passage, and the adolescent cannot enjoy the certainty of occupying a status that is clearly defined and characterized by consensual validation. The young teen-ager, going through puberty, is deprived of a consistent assessment of this particular span of life and is confused as to how to cope with his new appearance and new feelings. On the one hand, he knows that he has changed and no longer is a child, but on the other hand, he can tell that he is not yet considered an adult as he experiences dependency upon parental authority and is subject to legal limitations. Therefore, the important questions for him is: "When will I be an adult?" A serious dilemma of the American culture is that the youngster cannot find a clear answer. In fact, given the current cultural patterns, no one can give him a definite answer. The American society simply is too complex to be able to offer a rite of passage in the sense of initiation into the adult world. The urban-industrial conditions impose a long-drawn-out process that extends between child and adult status without clearly marking the transitions at the beginning or at the end of the process.It seems that clarity of one's social position and of one's integration into the social system is a recognizable need of man. In order to meet this need, a number of prerequisites must be completed, one being a clear introduction into one's status. The introduction should occur by way of a definite rite of passage. The absence of such rites may greatly reduce the awareness and clarity of one's status, and certain behavior patterns are likely to ensue that are conventionally designated as symptoms of maladjustment.

The Disparity Between Biological Adulthood and Social Adulthood

The discussion concerning the interplay between biological and sociocultural forces during adolescence should include still another adolescence-deepening problem. This problem is a result of the cultural interpretation of sexual maturation during the teen years. The American culture imposes sexual impotency and "neuterness" at a time when the young have just achieved sexual potency and are characterized by intense sexual tensions. From a biological point of view, the vast majority of adolescents are just as capable of the reproductive act and are just as much in need of release from erotic tensions as the adult. This implies that while he is sexually "adult," socially he is not yet considered adult. This cultural norm appears in legal context in most states restricting independent decision-making in regard to marriage for the young man under 21 years of age and for the young woman under 18 years. Parents, being social adults in charge of their "minor" offspring, have the authority to either give or withhold permission for marriage under these age requirements.

The social immaturity ascribed to teen-agers has serious implications for their sex life. The publicly proclaimed American folkways and mores do not allow a young adolescent to express his sexual urges and cravings, and for all practical purposes, in the eyes of the public he is still "sexless." Any sexual expression, be it heterosexual, homosexual, or autoerotic, is looked upon with strong disapproval. Consequently, the young individual faces almost total prohibition of sexual expression. On the cultural-ideal level, spontaneous nocturnal emission is the only permissable release of sexual tension. Although within the realm of the permitted, since uncontrollable, the nocturnal emission nevertheless falls under the taboo topics and is considered an embarrassing issue that is outside "respectable" conversation. However, the large majority of young adolescents have been exposed to enough inciting suggestions by the mass media and are sufficiently under the influence of their "knowledgeable" peers that sexual release usually does not remain limited to nocturnal emission.

Since the various types of sexual behavior are in violation of particularly sensitive and stringent cultural norms, feelings of guilt and shame are probable for many teen-agers in American society. Knowing that they have violated standards which the adult world imposes upon them, they develop a strong sense of alienation. Young people cannot help but gather from the forbidding and secretive atmosphere surrounding sexual questions that violation of the sexual codes will brand them as unacceptable to most adults.

Intense feelings of shame and guilt are surprisingly effective in ultimately generating feelings of rejection and hatred against those causing these unpleasant emotions. It seems to be a principle of human interaction that persons who feel rejected eventually generate feelings of rejection toward the original source. Ultimately, a reinforcing vicious cycle forms between the rejector and the rejectee. This holds especially true when the parties involved are collectivities, since feelings of rejection toward outsiders thrive best and most vigorously if an in-group supports and rewards such resentful and hostile attitudes.

The feelings of rejection which teenagers perceive because of their sexual attitudes and activities are in this way transformed into feelings of belonging to their peer group, which accepts them as they are. In essence, then, adolescents do not feel accepted in the adult world and therefore tend to set up their own world wherein they can act more comfortably, according to their biological maturity. They establish, thereby, an environment that gives them license for enactment of biological adulthood in spite of the denial of social adulthood.

The Nature-Nurture Controversy

Although social scientists observing the American scene agree that teenagers are characterized by restless and confused behavior, the explanation for this behavior of "storm and stress" sometimes lacks consensus and can be divided into two camps. Sociologists and social psychologists tend to argue for an environmental, primarily cultural, explanation, while some psychologists, relatively few, argue for a biogenetic origin of typical adolescent behavior. The question of whether nature (biological conditions) or nurture (social environment) is responsible for a given behavior pattern is of course on old one and has often been asked in relation to various stages in the life cycle of man, including the teenage period. The assumption that a causal relationship exists between the physiological, especially endocrinological, changes during pubescence and the behavioral and social phenomena of adolescence has been largely discarded in favor of the cultural explanation.

These developmental stages are presumably brought about by biologically innate forces which control growth and behavior. Human behavior manifests itself therefore in inevitable and unchangeable behavior patterns which are universal, regardless of the cultural environment. Cultural anthropologists and sociologists challenged this assertion and showed that Hall's theory was untenable in the light of cross-cultural observations. They were able to point to a number of societies where the phenomenon of adolescence did not exist, thereby rendering invalid Hall's claim that the adolescents' behavioral predispositions are direct expressions of universal physiological drives.

In the meantime, however, Hall and his followers continued to insist that socially unacceptable behavior, the type held analogous to earlier historical phases of man, must be tolerated by parents and educators since it is part of the necessary and unavoidable stages in the social development of the individual. These psychologists of adolescence reassured parents and teachers that this objectionable behavior would vanish of its own accord in subsequent stages of development, and that corrective or disciplinary measures are neither necessary nor advisable. Remnants of this theory still occupy a prominent place in American educational philosophy embedded in such ideas as Gesell's concept of maturation.

A realistic assessment of the nature-nurture question will probably result in neither an extreme environmental nor an extreme biogenetic statement, but rather in a balanced view that takes both factors into consideration. Without doubt, the physiological upheavals during early adolescence are capable of profoundly influencing the psychological processes and the social behavior of the young individual. However, the vast majority of modern behavioral scientists ascribe greater influencing power to the sociocultural environment that offers interpretations of this physiological turbulence than to the physiological processes per se. Sociocultural interpretations, as maintained by the majority of the people in a society, establish the meaning of an event, thing, or physiological process. Man, the symbolic creature, does not react to things and happenings as such, but mainly to the meanings attached to them. From a cross-cultural point of view, it is possible to observe a near-endless differential interpretation of neural impulses; i.e., one and the same physiological process can be perceived in totally different ways from one culture to the next. It is thus the meaning ascribed to the physiological processes at adolescence that determines the American teen-ager's reaction to them.

American culture influences

As a preliminary step to the following discussion, it is necessary to clarify the concept of culture, since it tends to vary with the frame of reference. For example, the colloquial connotation of the term usually deals with the so-called "finer things" in life, such as art, music, theater, dance, literature, etc. When anthropologists use the term, they may refer to either physical or nonphysical culture or to both combined -- including all creations of man. Physical aspects of culture refer to the products of man's technology, inclusive of all manmade objects from simple pottery to complex computers. Nonphysical aspects of culture refer to man's ideas and bodies of knowledge. It is this latter connotation that is of primary importance to a sociological discussion, emphasizing particularly those ideas of man that spell out the rules, expectations, and values of society. These norms and values can be called the "blueprint" for behavior which society imposes upon its members. This blueprint, consisting of the conglomerate of cultural dicta, is enforced by social sanctions, by punishment for deviation, and by reward for conformity. The cultural "blueprint" is a powerful force, capable of evoking compelling reactions in the members of the society, such as guilt and shame in case of violation and pride and self-esteem in case of adherence.

The following discussion uses the term culture primarily in the sense of a blueprint for behavior imposed by society on its members and maintained by formal as well as informal sanction systems.

The youngster's awareness of his physiological changes -- even if there were no particular cultural interpretations of them -- would be enough to cause him alarm. Fright and confusion frequently accompany the process of maturation because the bodily changes take place so rapidly that the youngster does not have enough time for gradual adjustment to his new physical properties. Although physiological change takes place at all age levels, the rate of change during the period of pubescence is considerably greater than in the years that precede or follow it.

When a negative cultural interpretation of sexual expression is added to the experience of rapid physiological change, a convergent condition evolves that exerts powerful and far-reaching influence on the personality development of the young individual. It seems, thus, that pubescence in conjunction with certain tenets of the American culture reinforce adolescence in several ways.

Generally, American culture presents either a negative view or no view at all regarding the meaning of pubescence, since the topic falls into the general taboo area. Symptoms of sexual maturity are not openly discussed, and the first menstruation of a girl is often cloaked in secrecy. Many girls feel ashamed, embarrassed, and frightened at that time, since they are frequently poorly prepared to understand and to accept these overt symptoms of pubescence. In contrast, in a number of other societies, notably in many of the so-called primitive tribal societies, the first menstruation is considered a joyful and festive occasion, an event of which the girl can be proud and which is publicly celebrated. For example, the Apache Indian girl's first menstruation was considered a potent supernatural blessing, and the priest knelt before her to obtain the blessing of her touch. The American culture, on the other hand, presents a view of pubescence that turns it into an adolescence-reinforcing event by making the youngster feel that she is going through an "unmentionable," "impure," and unacceptable stage in life. Both the girl and the boy are therefore afflicted with ambiguous perceptions of the bodily changes, and their reactions often generate feelings of anxiety and nonacceptance of themselves.

Problems of Work-world Adjustments

Modern society, as we have seen, offers a wide choice of vocations. Fortunate is the youth who can experiment with more than one vocation before eventually settling down to the one which he finds most compatible. Much of this kind of experimentation does go on in our society. Some of it is no doubt due to the temporary nature of many jobs available to the young person, some due to a desire of youth for change and experience. It begins with school experience which often reveals to a youth his interest or lack of interest in a vocational field.

RURAL and urban life represent still, in spite of their approaching similarity, vast differences in value systems and life goals. These patterns of life each create their unique problems of adjustment for youth.

Three basic values predominate in the farm community: work, land ownership, and family. Rather than being workmotivated, for many classes in urban society, life is pleasuremotivated. Work is but a means to an end. The labor union has tended in many instances not only to reduce hours and raise wages but to reduce production. Rather than the family being the goal, marriage is considered a means to personal happiness rather to the begetting of children. Land and property ownership as major goals are much less important than the lavish consumption of goods. To use Veblen's famous phrase, conspicuous consumption rather than the acquisition of real property seems to be the objective of urban life.

There are good reasons for these differences. The farm person takes pride in the output of his land, his manual accomplishments; his land and crops are there for all neighbors to see. They know they are his. This sort of pride is not possible in an urban culture. A person's neighbor cannot see the fruits of his labor. -In his desire for group approval and to gain the attention of others, he resorts to "conspicuous consumption."

foremost, and other such traits are more likely to get one ahead than ability to accomplish a particular task.

The difference in urban and rural economic values has become an important factor in the relationships between farm parents and their children. Duty and responsibility may bear heavily, too heavily, on the farm youth, until he sees no escape except through revolt. Work and more work may come to make up the daily ritual of life until it becomes almost a religion to the older generation and a plague to the new one.

There has been a sharp clash between the modern urban pleasure philosophy and the semipuritanic, work-duty philosophy of the farm community. Farm youth in high school invariably develop some interest in the recreation-pleasure activities fostered for town and city school systems and the informal associations that accompany them, thus incurring neighborhood condemnation for spending time and money on "foolishness."

The problem of the work-marriage choice

In the average family, the girl is taught economic dependence. In school she may be trained vocationally, and the work world may beckon her with an independent career. There is an obvious conflict between the standards of the average family regarding woman's ideal role and the role she actually plays in an urbanindustrial culture.

The major problem of all women is that of making adjustments (1) in the realm of love and sex and (2) in the realm of economics. In the first realm women have greater difficulty than men since the role of women in love adjustments is much less clearly defined than that of men. Sex codes, as they apply to women's behavior, have been in a more rapid process of modification during recent years than have those of men.

This is true also in the role of economic adjustment. It has always been assumed in our culture that man is to be the breadwinner. This is still what society expects of all men, but what society expects of women in this regard is not so clearly defined and, therefore, is in the realm of individual choice. Women choose first whether or not they will have a vocation and then what the vocation will be. A man decides only what his vocation will be. Even after having chosen a vocation, a woman's position is not settled. There is always the question of how long she will keep it, which affects her adjustments to it and her efficiency in it. Shall it be considered temporary until satisfactory marriage is possible, or shall it continue? If it is to continue, will it be only until the husband's earning power increases or until a child is born?

These are some of the perplexities that are peculiar to woman's adjustments in a complex society. The focal point of most of these decisions is the adolescent-youth period.

The majority of young people of this generation apparently feel that married young women should work at least under certain circumstances.

The problem of the work-marriage choice of the educated young woman in American society is one of the most critical of all her problems. The whole emphasis of modern education and of modern economic life is to create in the ambitious young woman the desire for a career. She receives, in school competition as well as in her work experience, a satisfying taste of the thrills of an independent career. From these experiences many young women are arbitrarily pulled back into the home by marriage and are expected immediately to direct all their energies and interests toward the problem of homemaking and child rearing for which the school system unfortunately has given them practically no preparation and no motivation. In the home they are supposed to be able to fulfill all the traditional expectations of wife and mother; to maintain themselves as charming youth and thus remain for their husbands a center of emotional attraction; to be the kind, considerate, and understanding mother who forgets all her own ambitions and strivings for a career in the interests of devotion to her children and to her husband.

It is little wonder that so many young women by the time they have finished college, or even high school and a period of business or professional activity, find the transition psychologically impossible and end up as frustrated wives, irritated mothers, and defeated career women. It seems clear that we must either change radically the values and objectives of education as they apply to woman's role of wife and mother, giving these values a new place, or else so modify the family institution that women can have an independent career along with husband and children. This could undoubtedly be achieved if society were to supplement the family by various child-rearing institutions such as domestic help, nursery and preschool supervision, and other subsidies in cash or in services to the mother who is both a wage or salary worker and mother.

Entrance to the Chooseen Vocation

It is one thing to choose a vocation, another to find a place in it. In the United States the labor union is becoming a powerful force to reckon with in industry. This complicates the problems of economic adjustment for many rural youth who migrate to cities and who are in many cases antilabor in philosophy.

Much of vocational training, even in the urban school and practically all of what little exists in rural schools, ignores this important influence of economic adjustment in contemporary life.

The whole vocational guidance and counseling movement has, indeed, now reached a point where its future seems relatively sterile and unproductive unless it will work deliberately with, in, and through the labor unions to raise the whole level of the vital vocational adjustment process to a democratic, functionally integrated plane--a plane that pulls together guidance, placement, acceptable terms of work, and strong, autonomous worker groups.

Forced delay in entering life work is prominent periodically in both urban and rural society, because of limited work opportunities. Often there is a period of waiting between school and employment, there being more or less blind stumbling about of many young people who are not fitted to enter the occupational world or who can find no appropriate opening. Many maladjustments are inherent in this situation. Those who are thwarted occupationally are likely to be thwarted in marriage, because marriage, as well as social status, group association, and general happiness, is very much conditioned by economic factors.

It may be stated as axiomatic that many occupations are available only to those who have the higher levels of education. It undoubtedly is true that within many occupations the amount of education a youth possesses determines his advancement. It is very likely that the person with less than an eighth-grade education will have to seek work either in the poorly paid ranks of farm labor and unskilled labor or in domestic service. It is just as obvious that college training or more is important to entering and succeeding in any kind of professional career. The school has become one of the main social elevators by which socioeconomic status is improved.