if he succeeded, might be all the greater. His control over his captive was absolute. Within the prescribed conditions, "capture" became technical and institutional, and rights grew out of it. The woman had a status which was defined by custom, and was very different from the status of a real captive. Marriage was the institutional relation, in the society and under its sanction, of a woman to a man, where the woman had been obtained in the prescribed way. She was then a "wife." What her rights and duties were was defined by the mores, as they are to-day in all civilized society.
62. Laws. Acts of legislation come out of the mores. In low civilization all societal regulations are customs and taboos, the origin of which is unknown. Positive laws are impossible until the stage of verification, reflection, and criticism is reached. Until that point is reached there is only customary law, or common law. The customary law may be codified and systematized with respect to some philosophical principles, and yet remain customary. The codes of Manu and Justinian are examples. Enactment is not possible until reverence for ancestors has been so much weakened that it is no longer thought wrong to interfere with traditional customs by positive enactment. Even then there is reluctance to make enactments, and there is a stage of transition during which traditional customs are extended by interpretation to cover new cases and to prevent evils. Legislation, however, has to seek standing ground on the existing mores, and it soon becomes apparent that legislation, to be strong, must be consistent with the mores.76 Things which have been in the mores are put under police regulation and later under positive law. It is sometimes said that "public opinion" must ratify and approve police regulations, but this statement rests on an imperfect analysis. The regulations must conform to the mores, so that the public will not think them too lax or too strict. The mores of our urban and rural populations are not the same; consequently legislation about intoxicants which is made by one of these sections of the population does not succeed when applied to the other. The regulation of drinking places, gambling places, and disorderly houses has passed through the above-mentioned stages. It is always a question of expediency whether to leave a subject under the mores, or to make a police regulation for it, or to put it into the criminal law. Betting, horse racing, dangerous sports, electric cars, and vehicles are cases now of things which seem to be passing under positive enactment and out of the unformulated control of the mores. When an enactment is made there is a sacrifice of the elasticity and automatic self-adaptation of custom, but an enactment is specific and is provided with sanctions. Enactments come into use when conscious purposes are formed, and it is believed that specific devices can be framed by which to realize such purposes in the society. Then also prohibitions take the place of taboos, and punishments are planned to be deterrent rather than revengeful. The mores of different societies, or of different ages, are characterized by greater or less readiness and confidence in regard to the use of positive enactments for the realization of societal purposes.
63. How laws and institutions differ from mores. When folkways have become institutions or laws they have changed their character and are to be distinguished from the mores. The element of sentiment and faith inheres in the mores. Laws and institutions have a rational and practical character, and are more mechanical and utilitarian. The great difference is that institutions and laws have a positive character, while mores are unformulated and undefined. There is a philosophy implicit in the folkways; when it is made explicit it becomes technical philosophy. Objectively regarded, the mores are the customs which actually conduce to welfare under existing life conditions. Acts under the laws and institutions are conscious and voluntary; under the folkways they are always unconscious and involuntary, so that they have the character of natural necessity. Educated reflection and skepticism can disturb this spontaneous relation. The laws, being positive prescriptions, supersede the mores so far as they are adopted. It follows that the mores come into operation where laws and tribunals fail. The mores cover the great field of common life where there are no laws or police regulations. They cover an immense and undefined domain, and they break the way in new domains, not yet controlled at all. The mores, therefore, build up new laws and police regulations in time.
64. Difference between mores and some cognate things. Products of intentional investigation or of rational and conscious reflection, projects formally adopted by voluntary associations, rational methods consciously selected, injunctions and prohibitions by authority, and all specific conventional arrangements are not in the mores. They are differentiated by the rational and conscious element in them. We may also make a distinction between usages and mores. Usages are folkways which contain no principle of welfare, but serve convenience so long as all know what they are expected to do. For instance, Orientals, to show respect, cover the head and uncover the feet; Occidentals do the opposite. There is no inherent and necessary connection between respect and either usage, but it is an advantage that there should be a usage and that all should know and observe it. One way is as good as another, if it is understood and established. The folkways as to public decency belong to the mores, because they have real connection with welfare which determines the only tenor which they can have. The folkways about propriety and modesty are sometimes purely conventional and sometimes inherently real. Fashions, fads, affectations, poses, ideals, manias, popular delusions, follies, and vices must be included in the mores. They have characteral qualities and characteral effect. However frivolous or foolish they may appear to people of another age, they have the form of attempts to live well, to satisfy some interest, or to win some good. The ways of advertisers who exaggerate, use tricks to win attention, and appeal to popular weakness and folly; the ways of journalism; electioneering devices; oratorical and dithyrambic extravagances in politics; current methods of humbug and sensationalism—are not properly part of the mores but symptoms of them. They are not products of the concurrent and coöperative effort of all members of the society to live well. They are devices made with conscious ingenuity to exert suggestion on the minds of others. The mores are rather the underlying facts in regard to the faiths, notions, tastes, desires, etc., of that society at that time, to which all these modes of action appeal and of whose existence they are evidence.
65. What is goodness or badness of the mores. It is most important to notice that, for the people of a time and place, their own mores are always good, or rather that for them there can be no question of the goodness or badness of their mores. The reason is because the standards of good and right are in the mores. If the life conditions change, the traditional folkways may produce pain and loss, or fail to produce the same good as formerly. Then the loss of comfort and ease brings doubt into the judgment of welfare (causing doubt of the pleasure of the gods, or of war power, or of health), and thus disturbs the unconscious philosophy of the mores. Then a later time will pass judgment on the mores. Another society may also pass judgment on the mores. In our literary and historical study of the mores we want to get from them their educational value, which consists in the stimulus or warning as to what is, in its effects, societally good or bad. This may lead us to reject or neglect a phenomenon like infanticide, slavery, or witchcraft, as an old "abuse" and "evil," or to pass by the crusades as a folly which cannot recur. Such a course would be a great error. Everything in the mores of a time and place must be regarded as justified with regard to that time and place. "Good" mores are those which are well adapted to the situation. "Bad" mores are those which are not so adapted. The mores are not so stereotyped and changeless as might appear, because they are forever moving towards more complete adaptation to conditions and interests, and also towards more complete adjustment to each other. People in mass have never made or kept up a custom in order to hurt their own interests. They have made innumerable errors as to what their interests were and how to satisfy them, but they have always aimed to serve their interests as well as they could. This gives the standpoint for the student of the mores. All things in them come before him on the same plane. They all bring instruction and warning. They all have the same relation to power and welfare. The mistakes in them are component parts of them. We do not study them in order to approve some of them and condemn others. They are all equally worthy of attention from the fact that they existed and were used. The chief object of study in them is their adjustment to interests, their relation to welfare, and their coördination in a harmonious system of life policy. For the men of the time there are no "bad" mores. What is traditional and current is the standard of what ought to be. The masses never raise any question about such things. If a few raise doubts and questions, this proves that the folkways have already