III. LAWLaw-lessness—Law and cust

III. LAW
Law-lessness—Law and custom—Revenge—Fines—Courts—Ordeal—The duel—Punishment—Primitive freedom

Law comes with property, marriage and government; the lowest societies manage to get along without it. “I have lived with communities of savages in South America and in the East,” said Alfred Russel Wallace, “who have no law or law-courts but the public opinion of the village freely expressed. Each man scrupulously respects the rights of his fellows, and any infraction of those rights rarely or never takes place. In such a community all are nearly equal.”17 Herman Melville writes similarly of the Marquesas Islanders: “During the time I have lived among the Typees no one was ever put upon his trial for any violence to the public. Everything went on in the valley with a harmony and smoothness unparalleled, I will venture to assert, in the most select, refined, and pious associations of mortals in Christendom.”18 The old Russian Government established courts of law in the Aleutian Islands, but in fifty years those courts found no employment. “Crime and offenses,” reports Brinton, “were so infrequent under the social system of the Iroquois that they can scarcely be said to have had a penal code.”19 Such are the ideal—perhaps the idealized—conditions for whose return the anarchist perennially pines.

Certain amendments must be made to these descriptions. Natural societies are comparatively free from law first because they are ruled by customs as rigid and inviolable as any law; and secondly because crimes of violence, in the beginning, are considered to be private matters, and are left to bloody personal revenge.

Underneath all the phenomena of society is the great terra firma of custom, that bedrock of time-hallowed modes of thought and action which provides a society with some measure of steadiness and order through all absence, changes, and interruptions of law. Custom gives the same stability to the group that heredity and instinct give to the species, and habit to the individual. It is the routine that keeps men sane; for if there were no grooves along which thought and action might move with unconscious ease, the mind would be perpetually hesitant, and would soon take refuge in lunacy. A law of economy works in instinct and habit, in custom and convention: the most convenient mode of response to repeated stimuli or traditional situations is automatic response. Thought and innovation are disturbances of regularity, and are tolerated only for indispensable readaptations, or promised gold.

When to this natural basis of custom a supernatural sanction is added by religion, and the ways of one’s ancestors are also the will of the gods, then custom becomes stronger than law, and subtracts substantially from primitive freedom. To violate law is to win the admiration of half the populace, who secretly envy anyone who can outwit this ancient enemy; to violate custom is to incur almost universal hostility. For custom rises out of the people, whereas law is forced upon them from above; law is usually a decree of the master, but custom is the natural selection of those modes of action that have been found most convenient in the experience of the group. Law partly replaces custom when the state replaces the natural order of the family, the clan, the tribe, and the village community; it more fully replaces custom when writing appears, and laws graduate from a code carried down in the memory of elders and priests into a system of legislation proclaimed in written tables. But the replacement is never complete; in the determination and judgment of human conduct custom remains to the end the force behind the law, the power behind the throne, the last “magistrate of men’s lives.”

The first stage in the evolution of law is personal revenge. “Vengeance is mine,” says the primitive individual; “I will repay.” Among the Indian tribes of Lower California every man was his own policeman, and administered justice in the form of such vengeance as he was strong enough to take. So in many early societies the murder of A by B led to the murder of B by A’s son or friend C, the murder of C by B’s son or friend D, and so on perhaps to the end of the alphabet; we may find examples among the purest-blooded American families of today. This principle of revenge persists throughout the history of law: it appears in the Lex Talionis*—or Law of Retaliation—embodied in Roman Law; it plays a large rôle in the Code of Hammurabi, and in the “Mosaic” demand of “an eye for an eye and a tooth for a tooth”; and it lurks behind most legal punishments even in our day.

The second step toward law and civilization in the treatment of crime was the substitution of damages for revenge. Very often the chief, to maintain internal harmony, used his power or influence to have the revengeful family content itself with gold or goods instead of blood. Soon a regular tariff arose, determining how much must be paid for an eye, a tooth, an arm, or a life; Hammurabi legislated extensively in such terms. The Abyssinians were so meticulous in this regard that when a boy fell from a tree upon his companion and killed him, the judges decided that the bereaved mother should send another of her sons into the tree to fall upon the culprit’s neck.20 The penalties assessed in cases of composition might vary with the sex, age and rank of the offender and the injured; among the Fijians, for example, petty larceny by a common man was considered a more heinous crime than murder by a chief.21 Throughout the history of law the magnitude of the crime has been lessened by the magnitude of the criminal.* Since these fines or compositions, paid to avert revenge, required some adjudication of offenses and damages, a third step towards law was taken by the formation of courts; the chief or the elders or the priests sat in judgment to settle the conflicts of their people. Such courts were not always judgment seats; often they were boards of voluntary conciliation, which arranged some amicable settlement of the dispute.†For many centuries, and among many peoples, resort to courts remained optional; and where the offended party was dissatisfied with the judgment rendered, he was still free to seek personal revenge.22

In many cases disputes were settled by a public contest between the parties, varying in bloodiness from a harmless boxing-match—as among the wise Eskimos—to a duel to the death. Frequently the primitive mind resorted to an ordeal not so much on the medieval theory that a deity would reveal the culprit as in the hope that the ordeal, however unjust, would end a feud that might otherwise embroil the tribe for generations. Sometimes accuser and accused were asked to choose between two bowls of food of which one was poisoned; the wrong party might be poisoned (usually not beyond redemption), but then the dispute was ended, since both parties ordinarily believed in the righteousness of the ordeal. Among some tribes it was the custom for a native who acknowledged his guilt to hold out his leg and permit the injured party to pierce it with a spear. Or the accused submitted to having spears thrown at him by his accusers; if they all missed him he was declared innocent; if he was hit, even by one, he was adjudged guilty, and the affair was closed.23 From such early forms the ordeal persisted through the laws of Moses and Hammurabi and down into the Middle Ages; the duel, which is one form of the ordeal, and which historians thought dead, is being revived in our own day. So brief and narrow, in some respects, is the span between primitive and modern man; so short is the history of civilization.

The fourth advance in the growth of law was the assumption, by the chief or the state, of the obligation to prevent and punish wrongs. It is but a step from settling disputes and punishing offenses to making some effort to prevent them. So the chief becomes not merely a judge but a lawgiver; and to the general body of “common law” derived from the customs of the group is added a body of “positive law,” derived from the decrees of the government; in the one case the laws grow up, in the other they are handed down. In either case the laws carry with them the mark of their ancestry, and reek with the vengeance which they tried to replace. Primitive punishments are cruel,24 because primitive society feels insecure; as social organization becomes more stable, punishments become less severe.

In general the individual has fewer “rights” in natural society than under civilization. Everywhere man is born in chains: the chains of heredity, of environment, of custom, and of law. The primitive individual moves always within a web of regulations incredibly stringent and detailed; a thousand tabus restrict his action, a thousand terrors limit his will. The natives of New Zealand were apparently without laws, but in actual fact rigid custom ruled every aspect of their lives. Unchangeable and unquestionable conventions determined the sitting and the rising, the standing and the walking, the eating, drinking and sleeping of the natives of Bengal. The individual was hardly recognized as a separate entity in natural society; what existed was the family and the clan, the tribe and the village community; it was these that owned land and exercised power. Only with the coming of private property, which gave him economic authority, and of the state, which gave him a legal status and defined rights, did the individual begin to stand out as a distinct reality.25 Rights do not come to us from nature, which knows no rights except cunning and strength; they are privileges assured to individuals by the community as advantageous to the common good. Liberty is a luxury of security; the free individual is a product and a mark of civilization.