Front Page Titles (by Subject) CHAPTER XIV.: laws. - Political Institutions, being Part V of the Principles of Sociology
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CHAPTER XIV.: laws. - Herbert Spencer, Political Institutions, being Part V of the Principles of Sociology 
Political Institutions, being Part V of the Principles of Sociology (The Concluding Portion of Vol. II) (London: Williams and Norgate, 1882).
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§ 529. If, going back once more to the primitive horde, we ask what happens when increase of numbers necessitates migration—if we ask what it is which causes the migrating part to fall into social arrangements like those of the parent part, and to behave in the same way; the obvious reply is that the inherited natures of its members, regulated by the ideas transmitted from the past, cause these results. That guidance by custom which we everywhere find among rude peoples, is the sole conceivable guidance at the outset.
To recall vividly the truth set forth in § 467, that the rudest men conform their lives to ancestral usages, I may name such further illustrations as that the Sandwich Islanders had “a kind of traditionary code…followed by general consent;” and that by the Bechuanas, government is carried on according to “long-acknowledged customs.” A more specific statement is that made by Mason concerning the Karens, among whom “the elders are the depositaries of the laws, both moral and political, both civil and criminal, and they give them as they receive them, and as they have been brought down from past generations” orally. Here, however, we have chiefly to note that this government by custom, persists through long stages of progress, and even still largely influences judicial administration. Instance the fact that as late as the 14th century in France, an ordinance declared that “the whole kingdom is regulated by ‘custom,’ and it is as ‘custom’ that some of our subjects make use of the written law.” Instance the fact that our own Common Law is mainly an embodiment of the “customs of the realm,” which have gradually become established: its older part, nowhere existing in the shape of enactment, is to be learnt only from textbooks; and even parts, such as mercantile law, elaborated in modern times, are known only through reported judgments, given in conformity with usages proved to have been previously followed. Instance again the fact, no less significant, that at the present time custom perpetually re-appears as a living supplementary factor; for it is only after judges’ decisions have established precedents which pleaders afterwards quote, and subsequent judges follow, that the application of an act of parliament becomes settled. So that while in the course of civilization written law tends to replace traditional usage, the replacement never becomes complete.
And here we are again reminded that law, whether written or unwritten, formulates the rule of the dead over the living. In addition to that power which past generations exercise over present generations by transmitting their natures, bodily and mental; and in addition to the power they exercise over them by bequeathed private habits and modes of life; there is this power they exercise through these regulations for public conduct handed down orally or in writing. Among savages and in barbarous societies, the authority of laws thus derived is unqualified; and even in advanced stages of civilization, characterized by much modifying of old laws and making of new ones, conduct is controlled in a far greater degree by the body of inherited laws than by those laws which the living make.
I emphasize these obvious truths for the purpose of pointing out that they imply a tacit ancestor-worship. I wish to make it clear that when asking in any case—What is the Law? we are asking—What was the dictate of our forefathers? And my object in doing this is to prepare the way for showing that unconscious conformity to the dictates of the dead, thus shown, is, in early stages, joined with conscious conformity to their dictates.
§ 530. For along with development of the ghost-theory, there arises the practice of appealing to ghosts, and to the gods evolved from ghosts, for directions in special cases, in addition to the general directions embodied in customs. There come methods by which the will of the ancestor, or the dead chief, or the derived deity, is sought; and the reply given, usually referring to a particular occasion, originates in some cases a precedent, from which there results a law added to the body of laws the dead have transmitted.
The seeking of information and advice from ghosts, takes here a supplicatory and there a coercive form. The Veddahs, who ask the spirits of their ancestors for aid, believe that in dreams they tell them where to hunt; and then we read of the Scandinavian diviners, that they “dragged the ghosts of the departed from their tombs and forced the dead to tell them what would happen:” cases which remind us that among the Hebrews, too, there were supernatural directions given in dreams as well as information derived from invoked spirits. This tendency to accept special guidance from the dead, in addition to the general guidance of an inherited code, is traceable in a transfigured shape even among ourselves; for besides conforming to the orally-declared wish of a deceased parent, children are often greatly influenced in their conduct by considering what the deceased parent would have desired or advised: his imagined injunction practically becomes a supplementary law.
Here, however, we are chiefly concerned with that more developed form of such guidance which results where the spirits of distinguished men, regarded with special fear and trust, become deities. Ancient Egyptian hieroglyphics reveal two stages of it. The “Instructions” recorded by King Rash’otephet are given by his father in a dream. “Son of the Sun Amenemhat—deceased:—He says in a dream—unto his son the Lord intact,—he says rising up like a god:—‘Listen to what I speak unto thee.’” And then another tablet narrates how Thothmes IV, travelling when a prince, and taking his siesta in the shade of the Sphinx, was spoken to in a dream by that god, who said— “Look at me!… Answer me that you will do me what is in my heart” &c.; and when he ascended the throne, Thothmes fulfilled the injunction. Analogous stages were well exemplified among the ancient Peruvians. There is a tradition that Huayna Ccapac, wishing to marry his second sister, applied for assent to the dead body of his father; “but the dead body gave no answer, while fearful signs appeared in the heavens, portending blood.” Moreover, as before pointed out in § 477, “the Ynca gave them (the vassals) to understand that all he did with regard to them was by an order and revelation of his father, the Sun.” Turning to extant races, we see that in the Polynesian Islands, where the genesis of a pantheon by ancestor worship is variously exemplified, divine direction is habitually sought through priests. Among the Tahitians, one “mode by which the god intimated his will,” was to enter the priest, who then “spoke as entirely under supernatural influence.” Mariner tells us that in Tonga, too, when the natives wished to consult the gods, there was a ceremony of invocation; and the inspired priest then uttered the divine command. Similar beliefs and usages are described by Turner as existing in Samoa. Passing to another region, we find among the Todas of the Indian hills, an appeal for supernatural guidance in judicial matters.
“When any dispute arises respecting their wives or their buffaloes, it has to be decided by the priest, who affects to become possessed by the Bell-god, and…pronounces the deity’s decision upon the point in dispute.”
These instances serve to introduce and interpret for us those which the records of historic peoples yield. Taking first the Hebrews, we have the familiar fact that the laws for general guidance were supposed to be divinely communicated; and we have the further fact that special directions were often sought. Through the priest who accompanied the army, the commander “inquired of the Lord” about any military movement of importance, and sometimes received very definite orders; as when, before a battle with the Philistines, David is told to “fetch a compass behind them, and come upon them over against the mulberry trees.” Sundry Ayran peoples furnish evidence. In common with other Indian codes, the code of Manu, “according to Hindoo mythology, is an emanation from the supreme God.” So, too, was it with the Greeks. Not forgetting the tradition that by an ancient Cretan king, a body of laws was brought down from the mountain where Jupiter was said to be buried, we may pass to the genesis of laws from special divine commands, as implied in the Homeric poems. Speaking of these Grote says:—
“The appropriate Greek word for human laws never occurs: amidst a very wavering phraseology, we can detect a gradual transition from the primitive idea of a personal goddess, Themis, attached to Zeus, first to his sentences or orders called Themistes, and next by a still farther remove to various established customs which those sentences were believed to sanctify—the authority of religion and that of custom coalescing into one indivisible obligation.”
Congruous in nature was the belief that “Lycurgus obtained not only his own consecration to the office of legislator, but his laws themselves from the mouth of the Delphic God.” To which add that we have throughout later Greek times, the obtainment of special information and direction through oracles. Evidence that among the Romans there had occurred a kindred process, is supplied by the story that the ancient laws were received by Numa from the goddess Egeria; and that Numa appointed augurs by whose interpretation of signs the will of the gods was to be ascertained. Even in the 9th century, under the Carolingians, there were brought before the nobles “articles of law named capitula, which the king himself had drawn up by the inspiration of God.”
Without following out the influence of like beliefs in later times, as seen in trial by ordeal and trial by judicial combat, in both of which God was supposed indirectly to give judgment, the above evidence makes it amply manifest that, in addition to those injunctions definitely expressed, or embodied in usages tacitly accepted from seniors and through them from remote ancestors, there are further injunctions more consciously attributed to supernatural beings—either the ghosts of parents and chiefs who were personally known, or the ghosts of more ancient traditionally-known chiefs which have been magnified into gods. Whence it follows that originally, under both of its forms, law embodies the dictates of the dead to the living.
§ 531. And here we are at once shown how it happens that throughout early stages of social evolution, no distinction is made between sacred law and secular law. Obedience to established injunctions of whatever kind, originating in reverence for supposed supernatural beings of one or other order, it results that at first all these injunctions have the same species of authority.
The Egyptian wall-sculptures, inscriptions, and papyri, everywhere expressing subordination of the present to the past, show us the universality of the religious sanction for rules of conduct. Of the Assyrians Layard says:—
“The intimate connection between the public and private life of the Assyrians and their religion, is abundantly proved by the sculptures.… As among most ancient Eastern nations, not only all public and social duties, but even the commonest forms and customs, appear to have been more or less influenced by religion.… All his [the king’s] acts, whether in war or peace, appear to have been connected with the national religion, and were believed to be under the special protection and superintendence of the deity.”
That among the Hebrews there existed a like connexion, is conspicuously shown us in the Pentateuch; where, besides the commandments specially so-called, and besides religious ordinances regulating feasts and sacrifices, the doings of the priests, the purification by scapegoat, &c, there are numerous directions for daily conduct—directions concerning kinds of food and modes of cooking; directions for proper farming in respect of periodic fallows, not sowing mingled grain, &c.; directions for the management of those in bondage, male and female, and the payment of hired labourers; directions about trade-transactions and the sales of lands and houses; along with sumptuary laws extending to the quality and fringes of garments and the shaping of beards: instances sufficiently showing that the rules of living, down even to small details, had a divine origin equally with the supreme laws of conduct. The like was true of the Ayrans in early stages. The code of Manu was a kindred mixture of sacred and secular regulations—of moral dictates and rules for carrying on ordinary affairs. Says Tiele of the Greeks after the Doric migration:— “No new political institutions, no fresh culture, no additional games, were established without the sanction of the Pythian oracle.” And again we read—
“Chez les Grecs et chez les Romains, comme chez les Hindous, la loi fut d’abord une partie de la religion. Les anciens codes des cités étaient un ensemble de rites de prescriptions liturgiques de prières, en même temps que de dispositions législatives. Les règles du droit de propriété et du droit de succession y étaient éparses au milieu des règles des sacrifices, de la sépulture et du culte des morts.”
Originating in this manner, law acquires stability. Possessing a supposed supernatural sanction, its rules have a rigidity enabling them to restrain men’s actions in greater degrees than could any rules having an origin recognized as natural. They tend thus to produce settled social arrangements; both directly, by their high authority, and indirectly by limiting the actions of the living ruler. As was pointed out in § 468, early governing agents, not daring to transgress inherited usages and regulations, are practically limited to interpreting and enforcing them: their legislative power being exercised only in respect of matters not already prescribed for. Thus of the ancient Egyptians we read:— “It was not on his [the king’s] own will that his occupations depended, but on those rules of duty and propriety which the wisdom of his ancestors had framed, with a just regard for the welfare of the king and of his people.” And how persistent is this authority of the sanctified past over the not-yet-sanctified present, we see among ourselves, in the fact that every legislator has to bind himself by oath to maintain certain political arrangements which our ancestors thought good for us.
While the unchangeableness of law, due to its supposed sacred origin, greatly conduces to social order during those early stages in which strong restraints are most needed, there of course results an unadaptiveness which impedes progress when there arise new conditions to be met. Hence come into use those “legal fictions,” by the aid of which nominal obedience is reconciled with actual disobedience. Alike in Roman law and in English law, as pointed out by Sir Henry Maine, legal fictions have been the means of modifying statutes which were transmitted as immutable; and so fitting them to new requirements: thus uniting stability with that plasticity which allows of gradual transformation.
§ 532. Such being the origin and nature of laws, it becomes manifest that the cardinal injunction must be obedience. Conformity to each particular direction pre-supposes allegiance to the authority giving it; and therefore the imperativeness of subordination to this authority is primary.
That direct acts of insubordination, shown in treason and rebellion, stand first in degree of criminality, evidently follows. This truth is seen at the present time in South Africa. “According to a horrible law of the Zulu despots, when a chief is put to death they exterminate also his subjects.” It was illustrated by the ancient Peruvians, among whom “a rebellious city or province was laid waste, and its inhabitants exterminated;” and again by the ancient Mexi cans, by whom one guilty of treachery to the king “was put to death, with all his relations to the fourth degree.” A like extension of punishment occurred in past times in Japan, where, when “the offence is committed against the state, punishment is inflicted upon the whole race of the offender.” Of efforts thus wholly to extinguish families guilty of disloyalty, the Merovingians yielded an instance: king Guntchram swore that the children of a certain rebel should be destroyed up to the ninth generation. And these examples naturally recall those furnished by Hebrew traditions. When Abraham, treating Jahveh as a terrestrial superior (just as existing Bedouins regard as god the most powerful living ruler known to them) entered into a covenant under which, for territory given, he, Abraham, became a vassal, circumcision was the prescribed badge of subordination; and the sole capital offence named was neglect of circumcision, implying insubordination: Jahveh elsewhere announcing himself as “a jealous god,” and threatening punishment “upon the children unto the third and fourth generation of them that hate me. “And the truth thus variously illustrated, that during stages in which maintenance of authority is most imperative, direct disloyalty is considered the blackest of crimes, we trace down through later stages in such facts as that, in feudal days, so long as the fealty of a vassal was duly manifested, crimes, often grave and numerous, were overlooked.
Less extreme in its flagitiousness than the direct disobedience implied by treason and rebellion, is, of course, the indirect disobedience implied by breach of commands. This, however, where strong rule has been established, is regarded as a serious offence, quite apart from, and much exceeding, that which the forbidden act intrinsically involves. Its greater gravity was distinctly enunciated by the Peruvians, among whom, says Garcilasso, “the most common punishment was death, for they said that a culprit was not punished for the delinquencies he had committed, but for having broken the commandment of the Ynca, who was respected as God.” The like conception meets us in another country where the absolute ruler is regarded as divine. Sir R. Alcock quotes Thunberg to the effect that in Japan, “most crimes are punished with death, a sentence which is inflicted with less regard to the magnitude of the crime than to the audacity of the attempt to transgress the hallowed laws of the empire.” And then, beyond the criminality which disobeying the ruler involves, there is the criminality involved by damaging the ruler’s property, where his subjects and their services belong wholly or partly to him. In the same way that maltreating a slave, and thereby making him less valuable, comes to be considered as an aggression on his owner—in the same way that even now among ourselves a father’s ground for proceeding against a seducer is loss of his daughter’s services; so, where the relation of people to monarch is servile, there arises the view that injury done by one person to another, is injury done to the monarch’s property. An extreme form of this view is alleged of Japan, where cutting and maiming of the king’s dependents “becomes wounding the king, or regicide.” And hence the general principle, traceable in European jurisprudence from early days, that a transgression of man against man is punishable mainly, or in large measure, as a transgression against the State. It was thus in ancient Rome: “every one convicted of having broken the public peace, expiated his offence with his life.” An early embodiment of the principle occurs in the Salic law, under which “to the wehrgeld is added, in a great number of cases,…the fred, a sum paid to the king or magistrate, in reparation for the violation of public peace;” and in later days, the fine paid to the State absorbed the wehrgeld. Our own history similarly shows us that, as authority extends and strengthens, the guilt of disregarding it takes precedence of intrinsic guilt. “‘The king’s peace’ was a privilege which attached to the sovereign’s court and castle, but which he could confer on other places and persons, and which at once raised greatly the penalty of misdeeds committed in regard to them.” Along with the growing check on the right of private revenge for wrongs—along with the increasing subordination of minor and local jurisdictions—along with that strengthening of a central authority which these changes imply, “offences against the law become offences against the king, and the crime of disobedience a crime of contempt to be expiated by a special sort of fine.” And we may easily see how, where a ruler gains absolute power, and especially where he has the prestige of divine origin, the guilt of contempt comes to exceed the intrinsic guilt of the forbidden act.
A significant truth may be added. On remembering that Peru, and Japan till lately, above named as countries in which the crime of disobedience to the ruler was considered so great as practically to equalize the flagitiousness of all forbidden acts, had societies in which militant organization, carried to its extreme, assimilated the social government at large to the government of an army; we are reminded that even in societies like our own, there is maintained in the army the doctrine that insubordination is the cardinal offence. Disobedience to orders is penal irrespective of the nature of the orders or the motive for the disobedience; and an act which, considered in itself, is quite innocent, may be visited with death if done in opposition to commands.
While, then, in that enforced conformity to inherited customs which plays the part of law in the earliest stages, we see insisted upon the duty of obedience to ancestors at large, irrespective of the injunctions to be obeyed, which are often trivial or absurd—while in the enforced conformity to special directions given in oracular utterances by priests, or in “themistes,” &c., which form a supplementary source of law, we see insisted upon the duty of obedience, in small things as in great, to certain recognized spirits of the dead, or deities derived from them; we also see that obedience to the edicts of the terrestrial ruler, whatever they may be, becomes, as his power grows, a primary duty.
§ 533. What has been said in the foregoing sections brings out with clearness the truth that rules for the regulation of conduct have four sources. Even in early stages we see that beyond the inherited usages which have a quasi-religious sanction; and beyond the special injunctions of deceased leaders, which have a more distinct religious sanction; there is some, though a slight, amount of regulation derived from the will of the predominant man; and there is also the effect, vague but influential, of the aggregate opinion. Not dwelling on the first of these, which is slowly modified by accretions derived from the others, it is observable that in the second we have the germ of the law afterwards distinguished as divine; that in the third we have the germ of the law which gets its sanction from allegiance to the living governor; and that in the fourth we have the germ of the law which eventually becomes recognized as expressing the public will.
Already I have sufficiently illustrated those kinds of laws which originate personally, as commands of a feared invisible ruler and a feared visible ruler. But before going further, it will be well to indicate more distinctly the kind of law which originates impersonally, from the prevailing sentiments and ideas, and which we find clearly shown in rude stages before the other two have become dominant. A few extracts will exhibit it. Schoolcraft says of the Chippewayans—
“Thus, though they have no regular government, as every man is lord in his own family, they are influenced more or less by certain principles which conduce to their general benefit.”
Of the unorganized Shoshones Bancroft writes—
“Every man does as he likes. Private revenge, of course, occasionally overtakes the murderer, or, if the sympathies of the tribe be with the murdered man, he may possibly be publicly executed, but there are no fixed laws for such cases.”
In like manner the same writer tells us of the Haidahs that—
“Crimes have no punishment by law; murder is settled for with relatives of the victim, by death or by the payment of a large sum; and sometimes general or notorious offenders, especially medicine-men, are put to death by an agreement among leading men.”
Even where government is considerably developed, public opinion continues to be an independent source of law. Ellis says that—
“In cases of theft in the Sandwich Islands, those who had been robbed retaliated upon the guilty party, by scizing whatever they could find; and this mode of obtaining redress was so supported by public opinion, that the latter, though it might be the stronger party, dare not offer resistance.”
By which facts we are reminded that where central authority and administrative machinery are feeble, the laws thus informally established by aggregate feeling are enforced by making revenge for wrongs a socially-imposed duty; while failure to revenge is made a disgrace, and a consequent danger. In ancient Scandinavia, “a man’s relations and friends who had not revenged his death, would instantly have lost that reputation which constituted their principal security.” So that, obscured as this source of law becomes when the popular element in the triune political structure is entirely subordinated, yet it was originally conspicuous, and never ceases to exist. And now having noted the presence of this, along with the other mingled sources of law, let us observe how the several sources, along with their derived laws, gradually become distinguished.
Recalling the proofs above given that where there has been established a definite political authority, inherited from apotheosized chiefs and made strong by divine sanction, laws of all kinds have a religious character; we have first to note that a differentiation takes place between those regarded as sacred and those recognized as secular. An illustration of this advance is furnished us by the Greeks. Describing the state of things exhibited in the Homeric poems, Grote remarks that “there is no sense of obligation then existing, between man and man as such—and very little between each man and the entire community of which he is a member;” while, at the same time, “the tie which binds a man to his father, his kinsman, his guest, or any special promisee towards whom he has taken the engagement of an oath, is conceived in conjunction with the idea of Zeus, as witness and guarantee:” allegiance to a divinity is the source of obligation. But in historical Athens,” the great impersonal authority called ‘The Laws’ stood out separately, both as guide and sanction, distinct from religious duty or private sympathies.” And at the same time there arose the distinction between breach of the sacred law and breach of the secular law: “the murderer came to be considered, first as having sinned against the gods, next as having deeply injured the society, and thus at once as requiring absolution and deserving punishment.” A kindred differentiation early occurred in Rome. Though, during the primitive period, the head of the State, at once king and high priest, and in his latter capacity dressed as a god, was thus the mouth-piece of both sacred law and secular law; yet, afterwards, with the separation of the ecclesiastical and political authorities, came a distinction between breaches of divine ordinances and breaches of human ordinances. In the words of Sir Henry Maine, there were “laws punishing sins. There were also laws punishing torts. The conception of offence against God produced the first class of ordinances; the conception of offence against one’s neighbour produced the second; but the idea of offence against the State or aggregate community did not at first produce a true criminal jurisprudence.” In explanation of the last statement it should, however, be added that since, during the regal period, according to Mommsen, “judicial procedure took the form of a public or a private process, according as the king interposed of his own motion, or only when appealed to by the injured party;” and since “the former course was taken only in cases which involved a breach of the public peace;” it must be inferred that when kingship ceased, there survived the distinction between transgression against the individual and transgression against the State, though the mode of dealing with this last had not, for a time, a definite form. Again, even among the Hebrews, more persistently theocratic as their social system was, we see a considerable amount of this change, at the same time that we are shown one of its causes. The Mishna contains many detailed civil laws; and these manifestly resulted from the growing complication of affairs. The instance is one showing us that primitive sacred commands, originating as they do in a comparatively undeveloped state of society, fail to cover the cases which arise as institutions become involved. In respect of these there consequently grow up rules having a known human authority only. By accumulation of such rules, is produced a body of human laws distinct from the divine laws; and the offence of disobeying the one becomes unlike the offence of disobeying the other. Though in Christianized Europe, throughout which the indigenous religions were superseded by an introduced religion, the differentiating process was interfered with; yet, on setting out from the stage at which this introduced religion had acquired that supreme authority proper to indigenous religions, we see that the subsequent changes were of like nature with those above described. Along with that mingling of structures shown in the ecclesiasticism of kings and the secularity of prelates, there went a mingling of political and religious legislation. Gaining supreme power, the Church interpreted sundry civil offences as offences against God; and even those which were left to be dealt with by the magistrate were considered as thus left by divine ordinance. But subsequent evolution brought about stages in which various transgressions, held to be committed against both sacred and secular law, were simultaneously expiated by religious penance and civil punishment; and there followed a separation which, leaving but a small remnant of ecclesiastical offences, brought the rest into the category of offences against the State and against individuals.
And this brings us to the differentiation of equal, if not greater, significance, between those laws which derive their obligation from the will of the governing agency, and those laws which derive their obligation from the consensus of individual interests—between those laws which, having as their direct end the maintenance of authority, only indirectly thereby conduce to social welfare, and those which, directly and irrespective of authority, conduce to social welfare: of which last, law, in its modern form, is substantially an elaboration. Already I have pointed out that the kind of law initiated by the consensus of individual interests, precedes the kind of law initiated by political authority. Already I have said that though, as political authority develops, laws acquire the shape of commands, even to the extent that those original principles of social order tacitly recognized at the outset, come to be regarded as obligatory only because personally enacted, yet that the obligation derived from the consensus of individual interests survives, if obscured. And here it remains to show that as the power of the political head declines—as industrialism fosters an increasingly free population—as the theird element in the triune political structure, long subordinated, grows again predominant; there again grows predominant this primitive source of law—the consensus of individual interests. We have further to note that in its re-developed form, as in its original form, the kind of law hence arising has a character radically distinguishing it from the kinds of law thus far considered. Both the divine laws and the human laws which originate from personal authority, have inequality as their common essential principle; while the laws which originate impersonally, in the consensus of individual interests, have equality as their essential principle. Evidence is furnished at the very outset. For what is this lex talionis which, in the rudest hordes of men, is not only recognized but enforced by general opinion? Obviously, as enjoining an equalization of injuries or losses, it tacitly assumes equality of claims among the individuals concerned. The principle of requiring “an eye for an eye and a tooth for a tooth,” embodies the primitive idea of justice everywhere: the endeavour to effect an exact balance being sometimes quite curious. Thus we read in Arbousset and Daumas:—
“A Basuto whose son had been wounded on the head with a staff, came to entreat me to deliver up the offender,—‘with the same staff and on the same spot where my son was beaten, will I give a blow on the head of the man who did it.’”
A kindred effort to equalize in this literal way, the offence and the expiation, occurs in Abyssinia; where, when the murderer is given over to his victim’s family, “the nearest of kin puts him to death with the same kind of weapon as that with which he had slain their relative.” As the last case shows, this primitive procedure, when it does not assume the form of inflicting injury for injury between individuals, assumes the form of inflicting injury for injury between families or tribes, by taking life for life. With the instances given in § 522 may be joined one from Sumatra.
“When in an affray [between families], there happen to be several persons killed on both sides, the business of justice is only to state the reciprocal losses, in the form of an account current, and order the balance to be discharged if the numbers be unequal.”
And then, from this rude justice which insists on a balancing of losses between families or tribes, it results that so long as their mutual injuries are equalized, it matters not whether the blameable persons are or are not those who suffer; and hence the system of vicarious punishment—hence the fact that vengeance is wreaked on any member of the transgressing family or tribe. Moreover, ramifying in these various ways, the principle applies where not life but property is concerned. Schoolcraft tells us that among the Dakotas, “injury to property is sometimes privately revenged by destroying other property in place thereof;” and among the Araucanians, families pillage one another for the purpose of making their losses alike. The idea survives, though changed in form, when crimes come to be compounded for by gifts or payments. Very early we see arising the alternative between submitting to vengeance or making compensation. Kane says of certain North American races, that “horses or other Indian valuables” were accepted in compensation for murder. With the Dakotas “a present of white wampum,” if accepted, condones the offence. Among the Araucanians, homicides “can screen themselves from punishment by a composition with the relations of the murdered.” Recalling, as these few instances do, the kindred alternatives recognized throughout primitive Europe, they also make us aware of a significant difference. For with the rise of class-distinctions in primitive Europe, the rates of compensation, equal among members of each class, had ceased to be equal between members of different classes. Along with the growth of personally-derived law, there had been a departure from the impersonally-derived law as it originally existed.
But now the truth to be noted is that, with the relative weakening of kingly or aristocratic authority and relative strengthening of popular authority, there revives the partially-suppressed kind of law derived from the consensus of individual interests; and the kind of law thus originating tends continually to replace all other law. For the chief business of courts of justice at present, is to enforce, without respect of persons, the principle, recognized before governments arose, that all members of the community, however otherwise distinguished, shall be similarly dealt with when they aggress one upon another. Though the equalization of injuries by retaliation is no longer permitted; and though the Government, reserving to itself the punishment of transgressors, does little to enforce restitution or compensation; yet, in pursuance of the doctrine that all men are equal before the law, it has the same punishment for transgressors of every class. And then in respect of unfulfilled contracts or disputed debts, from the important ones tried at Assizes to the trivial ones settled in County Courts, its aim is to maintain the rights and obligations of citizens without regard for wealth or rank. Of course in our transition state the change is incomplete. But the sympathy with individual claims, and the consensus of individual interests accompanying it, lead to an increasing predominance of that kind of law which provides directly for social order; as distinguished from that kind of law which indirectly provides for social order by insisting on obedience to authority, divine or human. With decline of the régime of status and growth of the régime of contract, personally-derived law more and more gives place to imper- sonally-derived law; and this of necessity, since a formulated inequality is implied by the compulsory cooperation of the one, while, by the voluntary cooperation of the other, there is implied a formulated equality.
So that, having first differentiated from the laws of supposed divine origin, the laws of recognized human origin subsequently re-differentiate into those which ostensibly have the will of the ruling agency as their predominant sanction, and those which ostensibly have the aggregate of private interests as their predominant sanction; of which two the last tends, in the course of social evolution, more and more to absorb the first. Necessarily, however, while militancy continues, the absorption remains incomplete; since obedience to a ruling will continues to be in some cases necessary.
§ 534. A right understanding of this matter is so important, that I must be excused for briefly presenting two further aspects of the changes described: one concerning the accompanying sentiments, and the other concerning the accompanying theories.
As laws originate partly in the customs inherited from the undistinguished dead, partly in the special injunctions of the distinguished dead, partly in the average will of the undistinguished living, and partly in the will of the distinguished living, the feelings responding to them, allied though different, are mingled in proportions that vary under diverse circumstances.
According to the nature of the society, one or other sanction predominates; and the sentiment appropriate to it obscures the sentiments appropriate to the others, without, however, obliterating them. Thus in a theocratic society, the crime of murder is punished primarily as a sin against God; but not without there being some consciousness of its criminality as a disobedience to the human ruler who enforces the divine command, as well as an injury to a family, and, by implication, to the community. Where, as among the Bedouins or in Sumatra, there is no such supernaturally-derived injunction, and no consequent reprobation of disobedience to it, the loss entailed on the family of the victim is the injury recognized; and, consequently, murder is not distinguished from manslaughter. Again, in Japan and in Peru, unqualified absoluteness of the living ruler is, or was, accompanied by the belief that the criminality of murder consisted primarily in transgression of his commands; though doubtless the establishment of such commands implied, both in ruler and people, some recognition of evil, individual or general, caused by breach of them. In ancient Rome, the consciousness of injury done to the community by murder was decided; and the feeling enlisted on behalf of public order was that which mainly enforced the punishment. And then among ourselves when a murder is committed, the listener to an account of it shudders not mainly because the alleged command of God has been broken, nor mainly because there has been a breach of “the Queen’s peace;” but his strongest feeling of reprobation is that excited by the thought of a life taken away, with which is joined a secondary feeling due to the diminution of social safety which every such act implies. In these different emotions which give to these several sanctions their respective powers, we see the normal concomitants of the social states to which such sanctions are appropriate. More especially we see how that weakening of the sentiments offended by breaches of authority, divine or human, which accompanies growth of the sentiments offended by injuries to individuals and the community, is naturally joined with revival of that kind of law which originates in the consensus of individual interests—the law which was dominant before personal authority grew up, and which again becomes dominant as personal authority declines.
At the same time there goes on a parallel change of theory. Along with a rule predominantly theocratic, there is current a tacit or avowed doctrine, that the acts prescribed or forbidden are made right or wrong solely by divine command; and though this doctrine survives through subsequent stages (as it does still in our own religious world), yet belief in it becomes nominal rather than real. Where there has been established an absolute human authority, embodied in a single individual, or, as occasionally, in a few, there comes the theory that law has no other source than the will of this authority: acts are conceived as proper or improper according as they do or do not conform to its dictates. With progress towards a popular form of government, this theory becomes modified to the extent that though the obligation to do this and refrain from that is held to arise from State-enactment; yet the authority which gives this enactment its force is the public desire. Still it is observable that along with a tacit implication that the consensus of individual interests affords the warrant for law, there goes the overt assertion that this warrant is derived from the formulated will of the majority: no question being raised whether this formulated will is or is not congruous with the consensus of individual interests. In this current theory there obviously survives the old idea that there is no other sanction for law than the command of embodied authority; though the authority is now a widely different one.
But this theory, much in favour with “philosophical politicians,” is a transitional theory. The ultimate theory, which it foreshadows, is that the source of legal obligation is the consensus of individual interests itself, and not the will of a majority determined by their opinion concerning it; which may or may not be right. Already, even in legal theory, especially as expounded by French jurists, natural law or law of nature, is recognized as a source of formulated law: the admission being thereby made that, primarily certain individual claims, and secondarily the social welfare furthered by enforcing such claims, furnish a warrant for law, anteceding political authority and its enactments. Already in the qualification of Common Law by Equity, which avowedly proceeds upon the law of “honesty and reason and of nations,” there is involved the pre-supposition that, as similarly-constituted beings, men have certain rights in common, maintenance of which, while directly advantageous to them individually, indirectly benefits the community; and that thus the decisions of equity have a sanction independent alike of customary law and parliamentary votes. Already in respect of religious opinions there is practically conceded the right of the individual to disobey the law, even though it expresses the will of a majority. Whatever disapproval there may be of him as a law-breaker, is over-ridden by sympathy with his assertion of freedom of judgment. There is a tacit recognition of a warrant higher than that of State-enactments, whether regal or popular in origin. These ideas and feelings are all significant of progress towards the view, proper to the developed industrial state, that the justification for a law is that it enforces one or other of the conditions to harmonious social cooperation; and that it is unjustified (enacted by no matter how high an authority or how general an opinion) if it traverses these conditions.
And this is tantamount to saying that the impersonally-derived law which revives as personally-derived law declines, and which gives expression to the consensus of individual interests, becomes, in its final form, simply an applied system of ethics—or rather, of that part of ethics which concerns men’s just relations with one another and with the community.
§ 535. Returning from this somewhat parenthetical discussion, we might here enter on the development of laws, not generally but specially; exhibiting them as accumulating in mass, as dividing and sub-dividing in their kinds, as becoming increasingly definite, as growing into coherent and complex systems, as undergoing adaptations to new conditions. But besides occupying too much space, such an exposition would fall outside the lines of our subject. Present requirements are satisfied by the results above set forth, which may be summarized as follows.
Setting out with the truth, illustrated even in the very rudest tribes, that the ideas conveyed, sentiments inculcated, and usages taught, to children by parents who themselves were similarly taught, eventuate in a rigid set of customs; we recognize the fact that at first, as to the last, law is mainly an embodiment of ancestral injunctions.
To the injunctions of the undistinguished dead, which, qualified by the public opinion of the living in cases not prescribed for, constitute the code of conduct before any political organization has arisen, there come to be added the injunctions of the distinguished dead, when there have arisen chiefs who, in some measure feared and obeyed during life, after death give origin to ghosts still more feared and obeyed. And when, during that compounding of societies effected by war, such chiefs develop into kings, their remembered commands and the commands supposed to be given by their ghosts, become a sacred code of conduct, partly embodying and partly adding to the code pre-established by custom. The living ruler, able to legislate only in respect of matters unprovided for, is bound by these transmitted commands of the unknown and the known who have passed away; save only in cases where the living ruler is himself regarded as divine, in which cases his injunctions become laws having a like sacredness. Hence the trait common to societies in early stages, that the prescribed rules of conduct of whatever kind have a religious sanction. Sacrificial observances, public duties, moral injunctions, social ceremonies, habits of life, industrial regulations, and even modes of dressing, stand on the same footing.
Maintenance of the unchangeable rules of conduct thus originating, which is requisite for social stability during those stages in which the type of nature is yet but little fitted for harmonious social cooperation, pre-supposes implicit obedience; and hence disobedience becomes the blackest crime. Treason and rebellion, whether against the divine or the human ruler, bring penalties exceeding all others in severity. The breaking of a law is punished not because of the intrinsic criminality of the act committed, but because of the implied insubordination. And the disregard of governmental authority continues, through subsequent stages, to constitute, in legal theory, the primary element in a transgression.
In societies that become large and complex, there arise forms of activity and intercourse not provided for in the sacted code; and in respect of these the ruler is free to make regulations. As such regulations accumulate there comes into existence a body of laws of known human origin; and though this acquires an authority due to reverence for the men who made it and the generations which approved it, yet it has not the sacredness of the god-descended body of laws: human law differentiates from divine law. But in societies which remain predominantly militant, these two bodies of laws continue similar in the respect that they have a personally-derived authority. The avowed reason for obeying them is that they express the will of a divine ruler, or the will of a human ruler, or, occasionally, the will of an irresponsible oligarchy.
But with the progress of industrialism and growth of a free population which gradually acquires political power, the humanly-derived law begins to sub-divide; and that part which originates in the consensus of individual interests, begins to dominate over the part which originates in the authority of the ruler. So long as the social type is one organized on the principle of compulsory cooperation, law, having to maintain this compulsory cooperation, must be primarily concerned in regulating status, maintaining inequality, enforcing authority; and can but secondarily consider the individual interests of those forming the mass. But in proportion as the principle of voluntary cooperation more and more characterizes the social type, fulfilment of contracts and implied assertion of equality in men’s rights, become the fundamental requirements, and the consensus of individual interests the chief source of law: such authority as law otherwise derived continues to have, being recognized as secondary, and insisted upon only because maintenance of law for its own sake indirectly furthers the general welfare.
Finally, we see that the systems of laws belonging to these successive stages, are severally accompanied by the sentiments and theories appropriate to them; and that the theories at present current, adapted to the existing compromise between militancy and industrialism, are steps towards the ultimate theory, in conformity with which law will have no other justification than that gained by it as maintainer of the conditions to complete life in the associated state.