A Handbook of Ethical Theory

by George Stuart Fullerton

68. THE ORIGIN AND THE PERSISTENCE OF CUSTOMS.—From the fact that customs are, in general, to be regarded as expressions of the social will, it might be assumed that their purposive character and social utility should be a sufficient explanation of their coming into being. But the matter is not so simple. A man may fall into habits which are no indication of what he regards as useful to him. Such habits have not been formed independently of his will, and yet they may appear to be purposeless, or even detrimental. Who wishes to have the inveterate habit of cracking the joints of his fingers or of biting his finger-nails? What purpose do such habits serve?

Although the social utility of customs, taken generally, is easily apparent, yet there are many customs which seem inexplicable upon such a principle. Why, for example, should the king of a primitive community be prohibited from sleeping lying down? or why should it be forbidden that he gaze upon the sea? [Footnote: Encyclopedia Britannica, Eleventh edition, article "Taboo.">[ The origin of such customs is hidden in obscurity. That their adoption was not without its reason, we may assume. That the reason was a reasonable one cannot be maintained. It seems probable, however, that it at some time seemed reasonable to some one. The persistence of habit, social as well as individual, would account for the perpetuation of the custom long after the occasion which gave rise to it had been forgotten.

69. LAW.—Between custom and law, taken generally, it is by no means easy to draw a sharp distinction, although, in some instances, the distinction, may be clearly marked. In primitive communities, laws reduced to writing, and administered by persons deliberately chosen for that end, may be wholly lacking; and yet who would say that such communities do not live under the reign of law in a broad sense of the term? A course of life is prescribed to the individual; failure to come up to the standard meets with punishment.

Nevertheless, as social life rises in the scale and as communities become developed, custom and law become differentiated. The latter stands out upon the background of the former as something more sharply defined. Penalties and the method of their infliction are more exactly fixed. Not all violations of what is customary are taken up into the legal code as punishable offences, although they meet with that indefinite measure of punishment entailed by social disapproval.

Those public habits which it seems to a community it is of especial importance to preserve and enforce come to be embodied in laws. The selection is a matter of more or less deliberate choice, and is an expression of will. The choice is not, normally, an arbitrary one. The laws of a people are, unless accident has intervened, the outcome and expression of its corporate life. For their ultimate authority they rest upon the acquiescence of the social will. Laws contrary to deep-seated and widely accepted custom are not apt to be regarded as of binding force. They are felt to be tyrannous, and are obeyed, if at all, unwillingly, and because of pressure from without.

In a later chapter [Footnote: Chapter XX.] I shall dwell upon the fact that the accidental may play a very significant role in law. In given instances the laws of a community may be, not the outcome of its will in any sense, but something imposed upon it. Such laws cannot but be felt to be oppressive and a restriction of freedom.

Laws, like customs, may cease to have a significance, and they may be modified or allowed to fall into desuetude. There is, however, much conservatism, as all who are familiar with legal usage know. And laws may fail of their purpose. They may aim to diminish crime, and their undiscriminating severity may foster crime. So may the individual select an end, fall into error in his choice of means, and, as a result of experience, resolve to substitute for such means others which are better adapted to carry out his purpose.

70. PUBLIC OPINION.—Public opinion is manifestly a force broader and more vague than established custom, and still broader than law. Public opinion may approve or condemn what no law touches, and it makes its influence felt beyond the sphere of what is customary.

Where customs and laws come to be imperfect expressions of the social will, they may stand condemned by public opinion. In such a case their authority is undermined and violations of them are condoned. Where public opinion is strongly against a law; the law becomes ineffective. The conservatism of law is such that a law may be allowed to stand unchanged, and yet may fail to be carried into effect. Juries may refuse to convict, or the unpalatable infliction of punishment may be avoided by granting to the judge a wide discretion in pronouncing sentence.

The gradual development of a strong public sentiment may lead to the passage of new laws, not based upon previously established customs, but deliberately framed with a view to the public weal. Old customs may be modified and new customs may be introduced. That the recommendations of public opinion extend beyond the sphere of the customary is manifest. It is not the custom of most men to leave any large part of their estate to public charity. Except in the case of the very rich, the failure to do so is not, as a rule, expressly condemned. Yet such bequests are approved, the testators are praised, and the attitude of public opinion has no small influence upon the conduct of individuals. Again, extreme self- sacrifice is not customary; it is exceptional; and yet shining examples of unselfishness excite a warm sympathy. The expression of this sympathy is not without its influence.