Morals and the Evolution of Man

by Max Simon Nordau

As a matter of fact, no fundamental difference between Law and Custom exists; only Law is enforced differently to Custom. It would be going too far to say: Law has sanctions and Custom has none. The latter has sanctions too, but they are of a different kind to those of the Law. He who transgresses Custom will suffer the contempt of his fellow men, and this may become so penetratingly severe that the most hardened and shameless rascal must feel it. In an old, loose form of society where individualism is highly developed, and each one goes his own way, paying little regard to the others, there an unscrupulous, conscienceless rogue may sin against Socrates' unwritten law without being penalized. In a young, closely-knit community, however, in which the feeling of intimate connexion between the members is lively and vivid, he would be proscribed, as soon as he was found out, and it would be impossible for him to remain, say, for example, in a small town of the United States. Public opinion would make it so hot for him that he would be glad to escape with a whole skin. But this punishment is exceptional for transgressions of Custom, whereas it is the rule for those of the Law.

The sanction of the Law is stricter than that of Custom, just as the Law itself is stricter than is Custom. The Law concerns itself with concrete cases in which consideration for one's fellow men must be practised, duties to him fulfilled, and his claims respected. These cases are defined by Law as clearly as possible, whereas Custom confines itself to generalities and determines the whole attitude of the individual to his neighbour. Custom embraces the outer and inner life of man and supervises his opinions, which are the parents of his deeds, and also his deeds themselves; Law is only concerned with actions, and refrains from penetrating to the intimacy of thoughts, unless the latter alter the essential character of the action, as premeditation in an act of revenge and temporary or permanent irresponsibility alter the judgment of offences and crimes. Law is a miserly extract of custom, a meagre selection from its variety, a concentration and embodiment of its surging vagueness. It may be compared with crystals, which in their geometrically accurate forms are crystallized clearly and definitely out of a liquid, the mother liquor; or with the heavenly bodies which agglomerate out of surging primal nebulæ. Custom is the primitive thing, Law is derived from it. It appeals to its descent from Custom, and founds, at any rate tacitly, its claim to respect on these grounds. A law which ran counter to Custom, which was confessedly in opposition to Custom, could never be maintained or prevail, though it bristled with the menace of the most dreadful punishments.

The relationship of mother to child between Custom and Law may be obscure to the majority; it is clear to the analytical mind. Recognition of the essential unity of both phenomena explains an assumption which was widespread among the best intellects from the Middle Ages until well into the eighteenth century, but which has now been abandoned as erroneous by more positive, though indeed narrower, legal minds. This assumption is that there is a natural Law antecedent to historical Law, which exists and acts beside and above the latter, and which forms the basis and the measure of every positive law, of every concrete legal judgment. It is comprehensible that the nineteenth century swept away the idea of natural Law and freely made fun of it. To a sternly disciplined legal mind it must indeed seem grotesque if a judge, in order to arrive at a verdict in some concrete dispute, cites the rights to which man is born instead of a certain text of the law, or even, following Schiller's advice, reaches up to the stars and brings down thence the eternal Law. Even this procedure is not so farcical as it seems to stupid article-mongers and hair-splitting paragraphists, for the procedure of equity of the English judges, who are not prone to clowning, is at bottom nothing but this reaching up to the stars and this judging by the rights to which man is born. The feud between natural Law and historical Law was really a quarrel about a word. Jean Jacques Rousseau, his contemporaries and disciples, simply made a mistake in their choice of an expression. They were guilty of an inaccuracy when they spoke of natural Law. They should have said: "the innate claim of man that his person should be respected," or, "natural consideration for one's fellow man," or, most shortly and simply, "Morality." To the latter legal lights would have raised none of the objections with which they victoriously opposed natural Law.

The beginnings of Morality coincide with the beginnings of society, as the latter could not have existed for a single day without the former. Since men, forced by the struggle for existence, emerged from their original, natural solitude and united in a community, they have had to watch over their impulses, suppress their desires, do things they disliked, and in all their actions and abstentions from action consider their neighbours' feelings, as they demanded that their feelings, too, should be considered. That was Morality which limited the vainglory and arbitrary conduct of unfettered man. It included all rules that determine the attitude of man to man. There was no distinction between Custom and Law. Men were ruled by custom which was traditional in their community and observed by all; and their Custom had the force of Law.

Formulated laws, and more especially written laws, appear comparatively late. True, Asia has old examples of such; the Manava Dharma Shastra, the book of laws of the Indian Manu, the Chinese Chings, the law of Hammu Rabi, and that other law, akin to this, though not derived from it, but probably drawn from a similar older source, the law of the Pentateuch. The laws of Draco, Solon and Lycurgus and the Roman Twelve table law are appreciably younger; much later still the leges barbarorum were written down, some of them, like the prescriptive Law of the Germans set down in the "Sachsenspiegel," not till the end of the Middle Ages. It is peculiar to most of the old Asiatic laws that they contain both rules of conduct and legal regulations, and that they do not differentiate between these two kinds of precepts.

Let us take one example: the Ten Commandments. Beside such positive orders as "Thou shalt not steal"; "Thou shalt not kill"; "Honour thy father and thy mother"; we find such as give rules for the character and course of spiritual happenings, regarding which others cannot observe whether they are obeyed or not, like the commandments respecting man's relationship to God, or admonishing man not to covet his neighbour's wife or goods. Those are subjective impulses, spiritual moods which are revealed only to the eye of conscience as long as they do not betray themselves in action, and which by their very nature cannot be the subject of Law which deals only with outward manifestations of thought and will, and is concerned only with things done.

In constitutional Law, too, no less than in criminal and civil Law, the eighteenth century tends to preface certain laws with universal moral principles, and to establish by formal law that the former are derived from the latter. The Declaration of Independence of the United States in July, 1774, says: We consider the following truths self-evident: that all men are born equal; that the Creator has bestowed upon them inalienable rights, amongst which are the right to life, to freedom, to the pursuit of happiness, etc. So before these rights are guaranteed by the Law, they are announced to belong by birth and nature to man, to be independent of any particular and express bestowal by the law-giver, and beyond all dispute or even argument. Of the thirteen States which formed the original Union, ten accompanied their constitution by a Bill of Rights which repeated the essential contents of the Declaration of Independence of July, 1774; seven of them placed them as an introduction before their fundamental law, and three of them incorporated them in the latter. Two others, New York and Georgia, distributed them among various articles of their constitution. Rhode Island alone refrained from a general declaration. The States which joined the Union later, with few exceptions followed the example of their predecessors and built up their constitution on the foundation of an explicit statement of the natural rights of man. The French Revolution followed the course which the United States had indicated, and began its constitution of 1791 with the "Declaration of the rights of men and citizens," which is not a law in the technical sense of the word, but is superior to all positive Law, constitutes the latter's standard and touchstone, and straightway makes all laws invalid which are not animated by its spirit or which contradict it.

In the beginning, therefore, there was Morality, and the first laws, which formulated its precepts either in oral tradition or in writing, recommended without distinction what was good and desirable, and what was necessary and expedient. The differentiation of the Morality, which the commonwealth felt to be its code of right and wrong, into Custom and Law took place in late times. It was most definite in Rome, where for the first time a clear distinction was made between men's relation to their gods and their relation to one another; the former was left to the individual's conscience, the latter subjected to the power of the State; the elements of feeling and of dim perception were banished from the Law which confined its attention to deeds which it regulated in a high-handed manner. Law chose from out the all-embracing sphere of Morality one narrow area, that of mankind's immediate, material interests, and took this as its sole theme. The object of all Morality is to enable men to live together in a community peacefully and prosperously; within the bounds of this more general purpose, the task of the Law is to suppress by force the grosser hindrances to this harmony among individuals, and by material means of coercion emphatically oblige everyone to respect the interests of his neighbour. What every responsible man of sound mind demands first and foremost is a proper respect for the possessions that are his by birth and acquisition, that is for his life, for his bodily welfare, for all the goods he owns that minister to his needs, his comfort and his pleasure. He who lays violent hands on these possessions, or threatens to endanger them, is recognized to be an enemy; man arms himself against such an one, fights against him, tries, if he have a strong character, to destroy him, or flees from him if he is too weak to triumph over him; man only yields to such an one if he simply cannot help himself, but he does so with hatred and revenge in his heart, and in a state of mind which, if it becomes fairly widespread, sets every man's hand against his fellow-men and leads to the ruin and even to the dissolution of the community. Hence the task of Law is effectively to protect the individual from the infringement of his rights by others. It places the organized forces of the community at the service of the individual whose interests are threatened, for the criminal law penalizes more or less severely attempts against life and health, unlawful seizure of property whether by force or cunning, malicious molestation and offence; the laws of commerce keep watch over the faithful fulfilment of contracts dealing with the fair exchange of goods or the execution of work, and in case of need enforce it.

A select few, everywhere only a small minority, has a different scale of values to that of the masses. For them "life is not the supreme thing." There are things they value more highly. The masses have no understanding for these people's needs and fine feelings. Their self-respect and their dignity are dear to them as wealth, their honour more sacred than life itself. Unhesitatingly they sacrifice their property to freedom, and more unbearable than anxiety for their material interests is life in surroundings in which brutality, vulgar sentiments, harsh egotism, malice, hypocrisy and treachery preponderate. The Law does not consider this minority. It is the creation and the servant of the great majority. It clings to earth and is incapable of lofty flights. It is of no service to the elect in the preservation of their noblest spiritual possessions or the defence of their ideals against clumsy maltreatment. It declares itself to be incompetent to deal with any but material affairs.

Therein lies at one and the same time the strength and the weakness of the Law. Its strength lies in the fact that it definitely limits its sphere of action and strives to achieve positive results by positive means, results intelligible even to a mean understanding. Its weakness lies in the fact that it ignores man's highest and noblest interests. And these interests are there, they too deserve consideration and protection, they have a right to demand that the guarantee of the community should embrace them as well. The well-being of the community, which is the object of Morality and of Law too, demands that such conditions should be created and maintained, as should enable the elect also to enjoy life or at least find existence bearable. But Law does not suffice for that. No law enjoins upon the careless throng of pachyderms to spare the tenderest and noblest sensibilities of lofty natures; no judge punishes thoughtless or purposely malicious injury to them. To remedy this evil we must rise from the lowly plain of Law, the natural dwelling-place of the masses, to the heights of Morality, the habitual abode of superior minds. At the theological stage of civilization refuge is sought with the gods in whose hands the protection of essential, spiritual possessions is placed. They are expected to punish the wicked whose evil deeds are beyond the reach of any penal code, they are expected to soothe and comfort when life is hard or even unendurable. That is the compromise that the elect made with life in the hard times of European barbarism. They escaped from the world and thus avoided contact with the repugnant masses. They shut themselves up in cloistered cells away from mankind and held mystic intercourse with God. Among the people, cruel authorities with difficulty maintained discipline and scanty law and order by means of flogging and the pillory, torture, the gallows and the wheel. The minority of the elect disciplined themselves, suppressed their lower impulses by self-imposed mortification, and with the help of prayer and belief in God's promised millennium managed to keep their heads above water despite the crushing spectacle of the life of those times.