LITMIR.BIZ

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to the primeval man in the social state, we have found that the natural condition is equality, and the fundamental notion at the basis of justice is, although primordial men were incapable of formulating it, that it is necessary for men living in a social state in a homogeneous condition of society to be granted and to have the same recognition, that is to say an equal right to an equal recognition. Every man has the right to act as others act. Hence each man has the right to do and to act in the customary way in which the other men are acting. It is a truism that customary ways of acting would never develop unless each man was at liberty to act in that way. This is all that liberty means. Yet profound philosophers like Kant and Hegel have thought that they made a discovery when they found the basis of law in liberty and equality. This is simply the assertion that law is based upon customary ways of acting. This thought simply spells equality, or, looked at from the standpoint that the law permits such conduct, it means an equal liberty. But why the philosophers should trumpet over this discovery of liberty and equality as the basis of law passeth all human comprehension. The short answer is that if members of a social community are to develop a custom by all of them acting in a certain way, they must have an equal liberty to act in that way. Without such liberty and equality there could be no custom and hence no law.

      When, therefore, primeval men began to fight within the tribe and inflict personal injuries upon each other (and we speak of personal injuries, for injuries as to property were as yet improbable) a custom would develop consonant with justice and right, first, that for a man to injure another was wrong, because it was out of the customary ways of acting and it interfered with the social body and its peace and preservation; and secondly, if an injury was inflicted, justice and equality required that the injured—or, if he was killed, his kindred—had the right to be placed back upon an equality with the injurer. We are before a time when the idea of a compensation for an injury was conceived by humankind. Therefore the only conceivable right was the one to exact the very same injury, that is, the right to be put back upon an equality. We are as yet in the infancy of the law of damages, where no other recompense could be conceived. There was no possible recompense except the exact equivalent given by the lex talionis; an eye for an eye and a tooth for a tooth, or “whosoever sheddeth man’s blood, by man shall his blood be shed.” When it came to be applied, it was not only right and just, but no other remuneration or equivalent could be found. The application of these primitive conceptions will be later shown, but it is here to be said that it ought to go without saying that the idea of justice must have developed long before there were any introspective questionings as to the rightful. Right became a much more generalized conception than justice, for it carried, when fully developed, all the notions involved in proper and correct conduct, when justice was not at all concerned. Righteousness can be applied to conditions of mind, where conduct toward a fellow being is not necessarily involved.

      In later ages in the highly developed Roman law of the jurisconsults which thirteen hundred years ago the Emperor Justinian caused to be compiled in the Roman Digest or Pandects, there was prefaced to the great mass of particular rules a general sketch of the law, patterned after the manual of a great law teacher called Gaius. This manual, both as the manual of Gaius and as that of Justinian’s compilation, was called the Institutes of the law. At the very head of the Institutes is a definition of justice which is borrowed from a much earlier Roman definition. Justice is there said to be “the constant and perpetual willingness to render to each one his right.” Among primeval men, among the Roman jurists, and among us to-day is the prevailing idea that what is due to each man, all men have the right to demand, and this demand can be answered only by a general rule which applies alike to all in the community.

      Adverting for a moment to the customary ways of acting in the social state and the long ages required to develop them, it is plain that customs as a second nature would be clung to with the greatest stubbornness, for it is easier to act in the habitual way. Even among highly cultivated men “to act is easy, but to think is hard.” We should expect to find customs in full force long after they should have been changed, and this is the history of law. That history may be summed up by saying that men cling to their customs. It is here that ideas of right among reasoning men begin to diverge from ideas of justice. To be just, men must act in the accustomed way, else liberty and equality are lost and men who are barred from the custom stand in a condition of unendurable shame. But to be suited to the newly conceived idea of the rightful in conduct men must develop a new custom; and this takes a long time. Yet, given time enough, the customs and habits tend to follow slowly and hesitatingly toward the rightful in the changing circumstances of a new life. So by the new custom, when properly developed and had a value, all sorts of injuries came to be compensated for in property. This will fully appear in the further history of the law.

      We turn now to other factors causing the development of law. For a length of time of which we can form little conception, all kinship was traced only through the mother, and relationship through the father was unknown. But somewhere on the road the initial institution of a marital union developed, and in the nature of things this must have resulted from the knowledge obtained by human beings that children are born of the conjugation of the male and the female. It dawned on the animal beginning to think that some part of the child belonged to the father. But the fact which seems well attested, that relationship was traced only in the female line for many ages, points to the further fact that a family based on the relationship of children through the apparent and proven fact of the mother, was created before the mother became tied to a particular man. So the family kinship was a kinship wholly through the mother. Whether the first type of family consisted of a woman with several husbands or several women and several men promiscuously united in one family, or whether the family consisted simply of a mother and children will probably never be determined. It should be apparent that the development of the idea of the kindred was a great step in itself. Its tendency to create sentiments of sympathy and affection could not but make it a strong civilizing element. Especially strong would be the effect of the idea of the kindred, along with increasing the number of objects of acquisition, in spreading the idea that property belongs to the kindred; and thus advancing mankind found the tribes dividing into matriarchal families with well defined rights of ownership in particular objects of property.

      If we keep in mind that the ineradicable tendency of human beings is to continue social habits long after reasons for a change have arisen, and also that the ideas of chastity, fidelity, and jealousy took long ages to come into existence, we should conclude that probably promiscuity, as we have defined it above, continued long after the family of a kindred came into existence. This would account for the long ages of the prevalence of the matriarchal family where the mother rules the family and a father has no part. There is no question as to this fact. Basques in northern Spain and southern France, a very primitive race, show strong traces of this ancient mother-headed and mother-ruled family. The legal rule that relationship and succession to the family estate belonged wholly to relatives through the mother and that any relationship through the father was not recognized settles the question.

      In the end, however, the instinct to propagate uniting with the instinct which was just as strong, to protect the children, joined to the acquired knowledge of paternity, would lead to some form of permanent union of man and woman. In no other way could the father’s right in the children be preserved. The curious fact is that the family of the woman, of which her brothers formed a part, was clearly established before any fixed marital union existed. And long after permanent marriages existed, the husband was a mere skulker on the outside of the family, with no authority and no place in the family, and with little if any right in the family property. It is apparent that as soon as the idea of a kindred developed and the tribe became made up of different kindreds, a more complicated stage of human existence had been reached. It is probable that this stage was reached when men were hunters. A woman or several women who were sisters with their brothers would form a natural unit, and the property ownership of such a family would be extended to the game, as a means of support for the family.

      In the passage to the nomad stage the flocks and herds would thus become family property. But the idea that men fought for their women with club and nail in their caves seems rank nonsense when applied to a stage of human life where no such sentiments as chastity or fidelity in the woman, or jealousy in the man, existed and the customs or laws were based on a matriarchal family.

      There is another reason for the development

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