target="_blank" rel="nofollow" href="#ulink_d53fd79f-8f69-50c1-8600-db4c7a6c4f4f">22 Hegel, Philosophie des Rechts, § 211, p. 199.
23 Rein, Japan, p. 314.
24 Bacon, ‘Essay xxxix. Of Custom and Education,’ in Essays, p. 372.
25 Herodotus, iii. 38.
Many laws were customs before they became laws. Ancient customs lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion that Hindu law is based upon customs which existed even prior to and independent of Brahmanism.26 The Greek word νόμος means both custom and law, and this combination of meanings was not owing to poverty of language, but to the deep-rooted idea of the Greek people that law is, and ought to be, nothing more and nothing less than the outcome of national custom.27 A great part of the Roman law was founded on the mores majorum; in the Institutes of Justinian, it is expressly said that “long prevailing customs, being sanctioned by the consent of those who use them, assume the nature of Laws.”28 The case was similar with the ancient laws of the Teutons and Irish.29
26 Mayne, op. cit. p. 4.
27 Ziegler, Social Ethics, p. 30. Schmidt, Ethik der alten Griechen, i. 201.
28 Institutiones, i. 2. 9.
29 Joyce, Social History of Ancient Ireland, i. 181.
The transformation of customs into laws was not a mere ceremony. Law, like custom, is a rule of conduct, but, while custom is established by usage and obtains, in a more or less indefinite way, its binding force from public opinion, a law originates in a definite legislative act, being set, as Austin says, by a sovereign person, or a sovereign body of persons, to a person or persons in a state of subjection to its author.30 By becoming laws, then, the customs were expressly formulated, and were enforced by a more definite sanction. It seems that the process in question arose both from considerations of social utility and from a sense of justice. Cicero observes that it was for the sake of equity that “laws were invented, which perpetually spoke to all men with one and the same voice.”31 From these points of view it was neither necessary nor desirable that more than a limited set of customs should pass into laws. There are customs which are too indefinite to assume the stereotyped shape of law.32 There are others, the breach of which excites too little public indignation, or which are of too little importance for the public welfare, to be proper objects of legislation. And there are others which may be said to exist unconsciously, that is, which are universally observed as a matter of course, and which, never being transgressed, are never thought of.
30 Austin, Lectures on Jurisprudence, i. 87, 181, &c.
31 Cicero, De officiis, ii. 12.
32 Cf. Aristotle, Ethica Nicomachea, v. 10. 6.
Laws which are based on customs naturally express moral ideas prevalent at the time when they are established. On the other hand, though still in existence, they are not necessarily faithful representatives of the ideas of a later age. Law may be even more conservative than custom. Though the latter exercises a very preservative influence on public opinion, it eo ipso changes when public opinion changes. Even among savages, in spite of their extreme regard for the customs of their ancestors, it is quite possible for changes to be introduced; the traditions of the Central Australian Arunta, for instance, indicate their own recognition of the fact that customs have varied from time to time.33 But the legal form gives to an ancient custom such a fixity as to enable it to survive, as a law, the change of public opinion and the introduction of a new custom. In all progressive societies, as Sir Henry Maine observes, social necessities and social opinion are always more or less in advance of law. “We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to re-open.”34
33 Spencer and Gillen, Native Tribes of Central Australia, p. 12 sqq.
34 Maine, Ancient Law, p. 24.
The moral ideas of a people are less extensively represented in its laws than in its customs. This is a corollary of the fact that there are always a great number of customs which never become laws. Moreover, whilst law, like custom, directly expresses only what is obligatory, it hardly ever deals with merit, even indirectly. The Chinese have a method of rewarding and commemorating meritorious and virtuous subjects by erecting gates in their honour, and conferring upon them marks of public distinction;35 and the Japanese and Coreans award prizes in the form of money or silver cups or monumental columns to signal exemplars of filial piety, arguing that, if the law punishes crime, it ought also to reward virtue.36 In Europe we have titles and honours, pensions for distinguished service, and the like; but the distribution of them is not regulated by law, and has often little to do with morality.
35 de Groot, Religious System of China (vol. ii. book) i. 769, 789 sq.
36 Griffis, Corea, p. 236.
Law, like custom, only deals with overt acts, or omissions, and cares nothing for the mental side of conduct, unless the law be transgressed. Yet, as will be seen subsequently, though this constitutes an essential difference between law and the enlightened moral consciousness, it throws considerable light on the moral judgments of the unreflecting mind.
Being a general, and at the same time a strictly defined, rule of conduct, a law can even less than a custom make special provision for every case so as to satisfy the demand of justice. This disadvantage, however, was hardly felt in early periods of legislation, when little account was taken of what was behind the overt act; and at later stages of development, the difficulty was overcome by leaving greater discretion to the judge. The history of legal punishments in England, for instance, shows a change from a system which, except in cases of misdemeanour, left no discretion at all to judges, to a system under which unlimited discretion is left to them in all cases except those which are still liable to capital punishment—practically, high treason and murder.37 The study of law, then, must for our purpose be supplemented by the study of judicial practice.
37 Stephen, History of the Criminal Law of England,