The Story of Law - John M. Zane

Скачать книгу

the savage and some god. The subject is shrouded in mystery, but we can reach the point that is required for the development of law by noticing that religions generally speaking developed into two kinds, one where there were many gods and goddesses identified with all sorts of objects and natural processes, and another where there was one god as the god of a particular tribe, who was at times in opposition to other gods of various kinds, and at other times in opposition to some particular malign deity. This fact and the production of the particular caste of priests is sufficient for our purposes here.

      The connection of the matter with the law is that the law came to be the particular possession of the priests, who were considered as being able to intervene between men and their gods, and a mass of law was produced requiring particular conduct toward the gods. By a natural process the laws came to be ascribed by the priests to the god or gods. It is apparent that when the laws came to be ascribed to the god, they would still more tend to crystallize and become unalterable. The laws had now become divine. This belief belongs both to Aryans and to Semites and long formed a working influence in medieval and modern law.

      This history has now proceeded to the point where the raw material, so to speak, of law has been ascertained. The fundamental physical factors, the raw human animal, the social community, the deep-seated, ingrained social instincts, the gradually expanding factors of civilization, the matriarchal family, the fixed domestic relations, the patriarchal family, the invention of a weapon, the expanding social type of mind, the development of the fighting instinct, the deep-seated acquisitive instinct for gathering and holding property, all modified by the slowly developing moral ideas of right and justice, constitute the raw material. It will next be in order to consider the races from which the development of law as we have it has proceeded, and to set forth first the primitive and then the ancient law, with the social basis that produced them.

      But at this point it is necessary to make an observation, that should be axiomatic. There is, and in the nature of things there can be, no law before a condition arises to which it can be applied. Such law is unthinkable, yet John Chipman Gray in his book on The Nature and Sources of Law thought that he was proving something when he inquired, “What was the law in the time of Richard Coeur de Lion on the liability of a telegraph company to the person to whom a message was sent?” Could anything be more absurd? He was demonstrating merely that he did not know what law was. He might just as well inquire: “What debt did France owe the United States when Alexander the Great ruled in Babylon?” A rule of law is a fact as impalpable as a debt, arising out of human relations. It cannot exist where the relations on which it is founded do not exist.

      Before leaving this subject of the law among primordial men we may dismiss once for all the schemes of socialistic communism. Never again can the human race or the human mind approach a condition where such an order of life is possible. With language and reasoning self-consciousness became possible, and a conscience developed in men the need for striving for consciously moral ends. The polity of the ants became from that period of development absolutely impossible among even barbarians. Then and there was founded “the one great society alone on earth, the noble living and the noble dead.” It became a truth that man doth not live by bread alone; his truer and higher life slowly developing came more and more to rest upon those higher attributes of personality that doom forever a mere mechanical adaptation of men to Nature’s decrees. The thinking, reasoning individual had emerged and step by step, even in sorrow, want, or obloquy, he was to rise above his surroundings. No longer was it possible for the individual to be swallowed up in the mass. No longer could all individuals be alike endowed with instincts acting precisely in the same way. The customary ways of acting, the law itself, must become a changing set of rules. New situations, wider mental horizons would create new duties. Time would make “ancient good uncouth.” Those very scientists who call conscience a delusion are compelled to act in their own lives upon a power in themselves to choose good instead of evil. The laws became constructed first upon the responsibility of the kindred and then upon the individual’s responsibility for his own acts, and without this responsibility social order is impossible among men.

      But the very basis of legal responsibility and hence all basis in justice of law is denied by certain scientists and criminologists. They deny this freedom of choice. They maintain that free will is a delusion. They assert that man cannot rise to the realm of choice, that his choice is dictated by natural causes. The theological predestinarians substitute for natural causes the will of God. But the answer to all this is plain. When one speaks of freedom of choice, he means choice in that conduct which is possible to men, not choice in the things that are impossible. This freedom of choice is a condition of mind and results in an act of the mind. It is not a material thing. If a man believes that he has this freedom of choice—and all men believe it, for all act upon that belief—each man is as a demonstrated fact enjoying the condition of freedom of the will. But not all men are alike capable of choice in all things where a choice is possible. Few men can die as did Socrates for an abstract belief in his duty to obey the laws. The great mass of men are imperfectly capable of choice. The highest are capable, the lowest are not at all. A poet has set forth this truth in beautifully simple words:

      To every man there openeth,

      A way, and ways and a way,

      And the high soul climbs the high way

      And the low soul gropes the low;

      And in between on the misty flats,

      The rest drift to and fro.

      And to every man there openeth

      A high way and a low,

      And every man decideth

      The way his soul shall go.

      IT IS A COMMONPLACE among ethnologists that they can discern three primary races, the Negro, the Mongolian, and the Caucasic. This may be proven by cross sections of human hair, if in no other way. There was a Nilotic race, so called because in its original form it is still found along the Nile and because it came probably from that region. This undifferentiated race many ages ago furnished probably the basis for the Caucasic races. Its main developments correspond to the descendants of the three sons of Noah, the Hamites, the Semites, and the sons of Japhet. The ethnologist of Genesis was sound on the main fact of the single origin of the Caucasic races, even if the exploits of the temporary mariner Noah strain our credulity. There seems no reason to doubt that the original Nilotic race was approximately as dark as were the ancient Egyptians and Berbers. A great mass of this race passed to the north, and in the lapse of ages for apparent reasons became bleached into whiteness and in the farther north into blondness. One great spreading migration of this race peopled the shores of the Mediterranean. It is called the Mediterranean race. A part of the ancient inhabitants of Italy, Greece, France, Spain, and the British Isles belonged to this race. They found as their northern neighbors another Caucasic white race who are called the Alpines, and with them the northern portions of the Mediterranean race became mixed. The Alpines may have been tinged with Mongolian blood. Almost all of western Asia belonged to the Semitic portion of this Caucasic race.

      Still farther to the north dwelt the part of the Caucasics that was afterwards to figure in ethnology as the Indo-European, or Aryan race, and this became probably the most mixed of all the races. The blond portion of this race has in late years been called the Nordics. Their descendants or supposed descendants have considered these Nordics a superior race, but this is a delusion of vanity and self-satisfaction. The mixed so-called Aryan race by migrations was to occupy Persia, northern India, as well as almost the whole of Europe. Some may differ from these classifications. Regardless of other considerations, the fact that this Caucasic race and the Aryan and Semitic portions of it are the only peoples of importance in the development of law among civilized men cannot be controverted. The migrations of the Aryan began apparently before those of the Semite, but the Semite earliest flowered, along with the Egyptian Hamite, into a very high civilization, while the Aryan was yet a wandering savage. The Aryan probably owed the civilization which he afterwards obtained

Скачать книгу