VII. That the fact of a tradition of “a law common to all nations” and of “a lost code of nature,” is in accordance with the historical and scriptural evidence which would render such a tradition probable.
Sir H. Maine, with whose argument I now propose to deal, is, as far as I am aware, the most conspicuous opponent of the common belief in the “Law of Nations;” and yet it appears to me that we shall find testimony to the tradition even in the very terms in which he repudiates it. I must at least consider this a recognition on his part of the strength and inveteracy of the opposite view. In the following extracts I shall suppose my readers fresh from the perusal of Sir H. Maine.
Sir H. Maine says (“Ancient Law,” pp. 7, 8), that the further “we penetrate into the primitive history of thought, the further we find ourselves from the conception of law of any sort.” And again, “It is certain that in the infancy of mankind, no sort of legislation, not even a distinct author of law, is contemplated or conceived of.” Now if Sir H. Maine had said nothing more, I should have felt bound to take this assertion upon his authority; but Sir H. Maine adds:—“Law has scarcely reached the footing of custom; it is rather a habit. It is, to use a French phrase, ‘in the air,’” [Is not Sir H. Maine here hunting for a phrase which shall not imply that it is in tradition?] “The only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge’s mind at the moment of adjudication.”
This passage may be adduced in evidence of the tradition of Noah and his heavenly-inspired judgments, but apparently it is in contradiction to the view of a law of nature, since it supposes the judge to decide through direct inspiration, or in the way of stet pro ratione voluntas, and not with reference to a “law which has been violated.” Now, Sir H. Maine comes to his conclusion upon the ground of the “Themistes” of the Homeric poems. “The earliest notions connected with the conception ... of a law or rule of life are those contained in the Homeric words ‘Themis’ and ‘Themistes’” (p. 4). “The literature of the heroic ages discloses to us law in the germ under the ‘Themistes,’ and a little more developed in the conception of ‘Dike’” (p. 9).If this were so, law according to the conception of “Themistes” and law according to the conception of “Dike” were never contemporaneous, but necessarily successive, or rather progressive; but at page 8 we read, “The Homeric word for a custom in the embryo is sometimes ‘Themis’ in the singular, more often ‘Dike,’ the meaning of which visibly fluctuates between ‘a judgment’ and a ‘custom’ or ‘usage.’ ‘Νομος,’ a law ... does not occur in Homer.”[288]
Well, allow that there need not be as yet the metaphysical conception of law, or law as a positive enactment, embracing indifferently a variety of cases. Eliminate the word “law.” Instead of the phrase “law of nature” substitute “natural justice,” and “the sense of right and wrong;” and it suffices that we detect “usage,” “custom,” right; for even if it were conceded that right is a post-Homeric rendering of δικη, yet “custom” and “usage” in their definition would have been in recognition of pre-existing right. This becomes more clear if we consider the alternative opinion. Sir H. Maine says that “under the patriarchal despotism,” “every man was practically controlled in all his actions by a regimen not of law but of caprice” (p. 8). The judgments, then, of the patriarchal times were mere “caprice,” and rights were defined without reference to any sense of justice. From “Themistes” of caprice they would proceed to legislation upon “caprice,” and, ultimately, to codes which would represent nothing but a digest of the precedents of “caprice.” It is difficult, then, to understand in what way and at what point the sense of justice, the conception of “dike,” originated, and most of all, if this is true, it is difficult to account for the “Themistes” being regarded as akin to inspiration, as well as for the veneration with which, we have the authority of Sir H. Maine (vide infra) for saying, that Archaic law was held, and, moreover, for the persistent tendency to revert to the past.[289]
If, however, we follow Sir H. Maine in his illustration taken from English law, we shall find ourselves reinstated in our original convictions. Sir H. Maine says (p. 8), “An Englishman should be better able than a foreigner to appreciate the historical fact that the ‘Themistes’ preceded any conception of law;” but at page 32, he says, “Probably it will be found that originally it was the received doctrine that somewhere in nubibus [Q. “in the air”], or in gremio magistratuum there existed a complete, coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances.” If, then, we take the analogy of the English law, we come also to the identical conclusion for which I contend—viz. that the “Themistes,” whether they partook of the character of commands or of judgments, were still in recognition of a “law which was violated.”
If the “Themistes” had no reference to a law which was violated; if they were mere caprice, I have already asked, whence arose the regard for ancient law among the nations of antiquity? and I may add, how came it about that their ideas of justice were inseparably connected with the notions of morality? Does Sir H. Maine deny either of these facts? On the contrary, he affirms them:—
“Quite enough, too, remains of these collections [‘ancient codes’] both in the East and in the West, to show that they mingled up religious, civil, and merely moral ordinances without any regard to differences in their essential character; and this is consistent with all we know of ancient thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress” (p. 16).
And at p. 121, “Much of the old law which has descended to us, was preserved merely because it was old. Those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. They offered no account of it except that it had come down to them from their ancestors.”
Does Sir H. Maine dispute the persistency of tradition in general? No. At [p. 117], vide supra, I have quoted a passage in which he explicitly maintains it.