xi. 16; xv. 12; xvi. 9.
132 Montefiore, op. cit. p. 484.
133 Ibid. p. 174.
134 Nazir, fol. 23 B, quoted by Hershon, Treasures of the Talmud, p. 74.
135 Succah, fol. 49 B, ibid. p. 11.
136 Quoted by Ameer Ali, Ethics of Islâm, p. 38 sq.
CHAPTER XII
FORBEARANCES AND CARELESSNESS—CHARACTER
THE observation has often been made that in early moral codes the so-called negative commandments, which tell people what they ought not to do, are much more prominent than the positive commandments, which tell them what they ought to do. The main reason for this is that negative commandments spring from the disapproval or acts, whereas positive commandments spring from the disapproval of forbearances or omissions, and that the indignation of men is much more easily aroused by action than by the absence of it. A person who commits a harmful deed is a more obvious cause of pain than a person who causes harm by doing nothing, and this naturally affects the question of guilt in the eyes of the multitude. A scrutinising judge of course carefully distinguishes between willfulness and negligence, whereas, to his mind, a forbearance is morally equivalent to an act. The unreflecting judge, on the other hand, is much less concerned with the question of wilfulness than with the distinction between acting and not-acting. Even the criminal laws of civilised nations take little cognisance of forbearances and omissions;1 and one reason for this is that they evoke little public indignation. Even if it be admitted that the rules of beneficence, so far as details are concerned, must be left in a great measure to the jurisdiction of private ethics, the limits of the law on this head, as Bentham remarks, seem “to be capable of being extended a good deal farther than they seem ever to have been extended hitherto.” And he appropriately asks, “In cases where the person is in danger, why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him?”2
1 Stephen, History of the Criminal Law of England, ii. 113. Hepp, Zurechnung auf dem Gebiete des Civilrechts, p. 115 (Roman law).
2 Bentham, Principles of Morals and Legislation, p. 322 sq. To a certain extent, however, this has been admitted by legislators even in the Middle Ages. Frederick II.’s Sicilian Code imposed a penalty on persons who witnessed conflagrations or shipwrecks without helping the victims, and a fine of four augustales on anyone who, hearing the shrieks of an assaulted woman, did not hurry to her rescue (Constitutiones Napolitana sive Siculæ, i. 28, 22 [Lindenbrog, Codex legum antiquarum, pp. 715, 712]). Bracton says (De Legibus et Consuetudinibus Angliæ, fol. 121, vol. ii. 280 sq.) that he who could rescue a man from death and did not do it, ought not to be exempt from punishment. It was a principle of the Canon law that he who does not prevent the infliction of an injury upon his neighbour when it lies in his power to do so, is to be regarded as an accomplice in the offence (Geyer, Lehre von der Nothwehr, p. 74. Gregory IX. Decretales, v. 12, 6. 2: “Qui potuit hominem liberare a morte, et non liberavit, eum occidit”).
The more scrutinising the moral consciousness, the greater the importance which it attaches to positive commandments. This is well illustrated by a comparison between Old and New Testament morality. As Professor Seeley observes,3 “the old legal formula began ‘thou shalt not,’ the new begins with ‘thou shalt.’ The young man who had kept the whole law—that is, who had refrained from a number of actions—is commanded to do something, to sell his goods and feed the poor. Condemnation was passed under the Mosaic law upon him who had sinned, who had done something forbidden—the soul that sinneth shall die; Christ’s condemnation is pronounced upon those who had not done good—‘I was an hungered and ye gave me no meat.’ The sinner whom Christ habitually denounces is he who has done nothing.” This characteristic is repeatedly manifested in His parables—as in the case of the priest and Levite who passed by on the other side; in the case of Dives, of whom no ill is recorded except that a beggar lay at his gate full of sores and yet no man gave unto him; in the case of the servant who hid in a napkin the talent committed to him. However, to say that the new morality involved the discovery of “a new continent in the moral globe,”4 is obviously an exaggeration. The customs of all nations contain not only prohibitions, but positive injunctions as well. To be generous to friends, charitable to the needy, hospitable to strangers, are rules which, as will be seen, may be traced back to the lowest stages of savagery known to us. The difference in question is only one of degree. Of the Bangerang tribe in Victoria Mr. Curr observes:—“Aboriginal restraints were, in the majority of cases, though not altogether, of a negative character; an individual might not do this, and might not eat that, and might not say the other. What he should do under any circumstances, or that he should do anything, were matters with which custom interfered less frequently.”5
3 Seeley, Ecce Homo, p. 176.
4 Ibid. p. 179.
5 Curr, Recollections of Squatting in Victoria, p. 264 sq.
Whilst the unreflecting mind has a tendency to overlook or underrate the guilt of a person who, whether wilfully or by negligence, causes harm by doing nothing, it is on the other hand, apt to exaggerate the guilt of a person who, not wilfully but out of heedlessness or rashness, causes harm by a positive act. In reality the latter person is blamable not for what he did, but for what he omitted to do, for want of due attention, for not thinking of the probable consequences of his act or for insufficient advertence to them. But the superficial judge largely measures the agent’s guilt by the actual harm done, and in many cases even attributes to carelessness what was due to sheer misfortune.
As Sir F. Pollock and Prof. Maitland rightly observe, it is not true that barbarians will not trace the chain of causation beyond its nearest link—that, for example, they will not impute one man’s death to another unless that other has struck a blow which laid a corpse at his feet.6 Among the Wanyoro, should a girl die in childbirth, the seducer is also doomed to die, unless he ransom himself by payment of some cows.7 Among the Wakamba, if a man is the second time guilty of manslaughter in a state of drunkenness, the elders may either sentence him to death, “or make the seller of drink pay compensation to the family of the victim.”8