[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, ii. 87.
Laws which represent public opinion are no more than customs safe exponents of the moral ideas held by particular members of the society. But on the other hand, there are cases in which a law, unlike a custom, may express the ideas, or simply the will, of a few, or even of a single individual, that is, of the sovereign power only. It is obvious that laws imposed upon a barbarous people by civilised legislators may differ widely from the people’s own ideas of right and wrong. For instance, when studying the moral sentiments of the Teutonic peoples from their early law-books, we must carefully set aside all elements of Roman or Christian origin. At the same time, however, it should be remembered that the moral consciousness of a people may gradually be brought into harmony with a law originally foreign to it. If the law is in advance of public opinion—as Roman law undoubtedly was in Teutonic countries—it may raise the views of the people up to its own standard by awaking in them dormant sentiments, or by teaching them greater discrimination in their judgments. And, as has been already noticed, what is forbidden and punished may, for the very reason that it is so, come to be regarded as wrong and worthy of punishment.
Finally, a law may enjoin or forbid acts which by themselves are regarded as indifferent from a moral point of view. This is, for instance, the case with the laws which require marriages to be celebrated at certain times and places only, and which forbid the cultivation of tobacco in England. Jurists divide crimes into mala in se and mala quia prohibita. The former would be wrong even if they were not prohibited by law, the latter are wrong only because they are illegal.
A law expresses a rule of duty by making an act or omission which is regarded as wrong a crime, that is, by forbidding it under pain of punishment. Law does not in all cases directly threaten[38] with punishment—I say directly, since all law is coercive, and all coercion at some stage involves the possibility of punishment.[39] Sanctions, or the consequences by which the sovereign political authority threatens to enforce the laws set by it, may have in view either the indemnification of the injured party, or the suffering of the injurer. In the latter case the sanctions are called punishments. But, though highly important, the distinction between indemnification and punishment is not absolute. A person who causes harm to another would hardly have to pay damages unless some kind of guilt or quasi-guilt were imputed to him; and, on the other hand, punishment may actually consist in the damages he has to pay. Moreover, the suffering involved in punishment must be regarded as a kind of indemnification in so far as it is intended to gratify the injured party’s craving for revenge. The pleasure of vengeance, says Bentham, “is a gain; it calls to mind Samson’s riddle—it is sweet coming out of the terrible, it is honey dropping from the lion’s mouth.”[40] In cases where the injured party is allowed to decide whether the injurer shall be punished or not, or what punishment (within certain limits) shall be inflicted upon him, it is obvious that punishment is largely looked upon as a means of indemnification. However, the fact that such a privilege is granted to the injured party indicates the existence of some degree of sympathetic resentment in the public. Punishment, in all its forms, is essentially an expression of indignation in the society which inflicts it.[41] Hence it is of extreme importance for the study of moral ideas, and calls for our careful consideration.