The Evolution of Human Government

70:11.1It is just as dif­fi­cult to draw sharp dis­tinc­tions be­tween mores and laws as to in­di­cate ex­actly when, at the dawn­ing, night is suc­ceeded by day. Mores are laws and po­lice reg­u­la­tions in the mak­ing. When long es­tab­lished, the un­de­fined mores tend to crys­tal­lize into pre­cise laws, con­crete reg­u­la­tions, and well-de­fined so­cial con­ven­tions.

70:11.2Law is al­ways at first neg­a­tive and pro­hibitive; in ad­vanc­ing civ­i­liza­tions it be­comes in­creas­ingly pos­i­tive and di­rec­tive. Early so­ci­ety op­er­ated neg­a­tively, grant­ing the in­di­vid­ual the right to live by im­pos­ing upon all oth­ers the com­mand, “you shall not kill.” Ev­ery grant of rights or lib­erty to the in­di­vid­ual in­volves cur­tail­ment of the lib­er­ties of all oth­ers, and this is ef­fected by the taboo, prim­i­tive law. The whole idea of the taboo is in­her­ently neg­a­tive, for prim­i­tive so­ci­ety was wholly neg­a­tive in its or­ga­ni­za­tion, and the early ad­min­is­tra­tion of jus­tice con­sisted in the en­force­ment of the taboos. But orig­i­nally these laws ap­plied only to fel­low tribes­men, as is il­lus­trated by the later-day He­brews, who had a dif­fer­ent code of ethics for deal­ing with the gen­tiles.

70:11.3The oath orig­i­nated in the days of Dala­ma­tia in an ef­fort to ren­der tes­ti­mony more truth­ful. Such oaths con­sisted in pro­nounc­ing a curse upon one­self. For­merly no in­di­vid­ual would tes­tify against his na­tive group.

70:11.4Crime was an as­sault upon the tribal mores, sin was the trans­gres­sion of those taboos which en­joyed ghost sanc­tion, and there was long con­fu­sion due to the fail­ure to seg­re­gate crime and sin.

70:11.5Self-in­ter­est es­tab­lished the taboo on killing, so­ci­ety sanc­ti­fied it as tra­di­tional mores, while re­li­gion con­se­crated the cus­tom as moral law, and thus did all three con­spire in ren­der­ing hu­man life more safe and sa­cred. So­ci­ety could not have held to­gether dur­ing early times had not rights had the sanc­tion of re­li­gion; su­per­sti­tion was the moral and so­cial po­lice force of the long evo­lu­tion­ary ages. The an­cients all claimed that their olden laws, the taboos, had been given to their an­ces­tors by the gods.

70:11.6Law is a cod­i­fied rec­ord of long hu­man ex­pe­ri­ence, pub­lic opin­ion crys­tal­lized and le­gal­ized. The mores were the raw ma­te­rial of ac­cu­mu­lated ex­pe­ri­ence out of which later rul­ing minds for­mu­lated the writ­ten laws. The an­cient judge had no laws. When he handed down a de­ci­sion, he sim­ply said, “It is the cus­tom.”

70:11.7Ref­er­ence to prece­dent in court de­ci­sions rep­re­sents the ef­fort of judges to adapt writ­ten laws to the chang­ing con­di­tions of so­ci­ety. This pro­vides for pro­gres­sive adap­ta­tion to al­ter­ing so­cial con­di­tions com­bined with the im­pres­sive­ness of tra­di­tional con­ti­nu­ity.

70:11.8Prop­erty dis­putes were han­dled in many ways, such as:

70:11.91. By de­stroy­ing the dis­puted prop­erty.

70:11.102. By force—the con­tes­tants fought it out.

70:11.113. By ar­bi­tra­tion—a third party de­cided.

70:11.124. By ap­peal to the el­ders—later to the courts.

70:11.13The first courts were reg­u­lated fistic en­coun­ters; the judges were merely um­pires or ref­er­ees. They saw to it that the fight was car­ried on ac­cord­ing to ap­proved rules. On en­ter­ing a court com­bat, each party made a de­posit with the judge to pay the costs and fine af­ter one had been de­feated by the other. “Might was still right.” Later on, ver­bal ar­gu­ments were sub­sti­tuted for phys­i­cal blows.

70:11.14The whole idea of prim­i­tive jus­tice was not so much to be fair as to dis­pose of the con­test and thus pre­vent pub­lic dis­or­der and pri­vate vi­o­lence. But prim­i­tive man did not so much re­sent what would now be re­garded as an in­jus­tice; it was taken for granted that those who had power would use it self­ishly. Nev­er­the­less, the sta­tus of any civ­i­liza­tion may be very ac­cu­rately de­ter­mined by the thor­ough­ness and eq­uity of its courts and by the in­tegrity of its judges.