Morals and the Evolution of Man

by Max Simon Nordau

Long before the Christian era, the Greeks of noble disposition felt the need of living in an atmosphere of higher intellectuality and morality than that of the market-place, and they hid themselves behind the cloud-curtain of the Eleusinian Mysteries, where they kept to themselves, escaped the rule of the rude Law, and followed the nobler precepts of Morality. Whenever the measure of Morality contained in positive law did not suffice for the minority with higher aspirations, this minority adopted the same expedient, a form of esotericism; small circles were formed outside the community in which there was added to the current legal code a superstructure of stricter rules, more finely shaded duties, more courteous consideration. Present-day life also offers examples of this tendency which is met with in all ages. There are select circles and professions in which the standard of irreproachableness is far higher than among the mass of the people. There a man is not held blameless, simply because he has never transgressed a positive law, never come into conflict with the powers of justice. He must be as unspotted in the eye of moral justice as he is in that of the Law. A club or association that is self-respecting will not admit to membership a candidate reputed to lie, to have an evil tongue, to break his word, to be a toady and a snob, though none of these offences are punishable by law. It has happened that a corps of German officers has forced one of their number to send in his papers because he has seduced and deserted a respectable girl, an adventure flattering to the vanity of puppies who, as like as not, boast of it, and with which a judge can only deal if the injured girl appeals to him—and even then he cannot punish the offender, but merely sentence him to pay damages.

Almost the whole world is agreed on the point that the Law does not sufficiently protect honour. Positive Law evidently does not consider it of such value as material possessions, for the defence of which it knows itself to be qualified. But there are numbers of people whose honour is dearer to them than their fortune, even than their life, and trembling with indignation they see that a thief who steals their purse with a few shillings is haled off to prison, while a slanderer who sullies their honour either goes unpunished, or at most gets off with a fine, which merely adds official insult to the injury. In this case the Law has lagged so far behind Morality that individuals try of their own accord to bridge the gulf without counting on the intervention of the community. For aspersions of their honour the masses take revenge with fists and cudgels, often with bloody results; and among the elect they resort to duels with lethal weapons, a preposterous proceeding due to desperation, and a bitter indictment of the prevailing laws. It is a deed of self-help, like the formation of a vigilance committee among the anarchical throng of a lawless rabble. Hardly to be justified on reasonable grounds, it is intelligible from the point of view of historical tradition, and as a survival of dim and primitive ideas. In early days a properly regulated duel was an ordeal showing the judgment of heaven. It was the general conviction that God would give victory to the right and crush the wrong. When human Law failed, the injured party appealed to the source of all Law and placed his cause in the hands of the Almighty. From this point of view the duel is no unsuitable means of preventing plots to evade the law. Even if the injured party is inexperienced in the use of the weapon, even if his opponent is skilled and vastly his superior, he need not worry, for God fights on his side. Therefore he is more sure of success than if he entrusted his cause to fallible human judges. But from the moment that the duel ceases to be regarded as a means of arriving at the verdict of God, nothing can be urged in its defence, and that it nevertheless persists is a fact that can only be accounted for by the inadequacy of the current laws.

It really is astonishing that the Law does not yet appraise honour at its true value. Educated people almost unanimously regret and condemn the backwardness of the Law in this respect, all the more so because the tremendous development of the respectable, as well as of the disreputable, Press facilitates and aggravates libel to a hitherto undreamed-of extent, and no defence can overtake the slander which is quickly spread broadcast. Doubtless public opinion will urge that measures be taken to bring the Law into line with the views now held on all sides on the significance of honour, its defencelessness and its need for protection. That this has not yet been done is due to the slowness with which the Law adapts itself to the demands of a Morality which grows ever more profound and more refined. Law, which originally devoted itself only to the crudest material interests, very slowly extends the range of its protection, but it does so continually, with an ever-widening embrace, including more and more delicate, more and more noble, possessions, taking into consideration ever higher and ever finer needs. What early legislator would have thought of man's needing protection not only against murder, grievous bodily harm and maltreatment, but also against the dangers due to ignorance and carelessness in light-heartedly spreading infectious diseases, and contaminating water and the air? Who would have dreamed in former times that positive Law would consider the sensitiveness of nerves, desire for beauty, dislike of ugliness and forbid disturbing street noises, protect the countryside from wicked disfigurement, and prevent the construction of buildings which would spoil the artistic architectural plan of a city?

These little traits, these concessions to personal demands, which to a coarse mind do not seem obviously justified, go to prove that positive Law continues to grow beyond the bounds of its unavoidably crude materialism, and strives to rise into the regions of the unwritten law of the Peripatetics, where ideal possessions are of more importance than those which have traditionally come within the scope of criminal and civil Law. Law and Custom have a natural tendency to approach more and more nearly to one another, to become merged in one another where the line that divides them is but faintly indicated. The closer the union between them, the more perfect is the Morality of a society. Absolute perfection would be reached if Law, which has been derived by differentiation from Morality, should, after a protracted period of development, return to its source and be completely merged again in Morality. But that is a dream which can never be realized as long as man is constituted as he is at the present time. Enthusiasts have dreamed of it, and in their imagination have seen an anarchical and lawless society in which no positive Law, no sanctions of force were needed, and in which the understanding and conscience of individuals would suffice to ensure the rule of good faith and goodness, and the curbing of selfishness. As far as man can tell we shall never attain this Utopia. We shall never be able to do without positive Law, not only on account of undeveloped and perverse natures, in which animalism has the upper hand of humanity, and which must be kept under strict discipline, but because a sure guide is needed in cases of doubt and irresolution which confuse even the good, nay, the best, men when passion and violent desire, with their heavy thunderclouds, darken the outlook of Reason, and judgment wavers amid the hurly-burly of a spiritual tempest. All that we may hope for and should desire is that Law should be filled with the spirit of Morality and embrace as many moral ideas as possible.

It lies in the nature of the thing that Morality was never clearly and definitely formulated, for as soon as this was done it assumed the character of Law. It remained general and slightly vague, it spoke to men in such indefinite terms as "good," "virtue," "duty," "love of one's neighbour," "unselfishness," "patience"—terms into which everyone can read the meaning which suits his thoughts and feelings. Mankind has never lacked moral teachers. The Indian Shastras and the Chings, Confucius and Meng Tse, the prophets of Israel and Ben Sirach, Plato and the wise men of the Stoics, the Zend Avesta, Jesus and Paul, the platonic ethics of Nicomachus, those of Epictetus and Marcus Aurelius, thousands of years ago preached the principles which exhaust the whole field of Morality, and beyond the essentials of which none of the later moralists have gone; neither the "Imitation of Christ" nor Ibn Bachia, Spinoza, the Scotch school and Kant, up to Wundt and Guyau.

But what about the effect of the doctrines which they advocated gently or passionately, adducing proofs or uttering threats? To lend weight to them they either appealed to God, threatening mankind with His wrath and vengeance, or to Reason, which, according to them, could advise man only for his good. Perhaps they could intimidate those who had blind faith and convince the reasonable. But there are many of little faith, and more still who are unreasonable, and on these the persuasion, warnings and conclusions of the Moralists had no effect. For these it was imperative to clothe the minimum of Morality, the minimum without which no society can exist, in the definite form of laws, and so create the Law to which the weapons of the community lend compelling force. Thus the whole material of Ethics is divided into Morality and Law. The Theologians and Scholiasts who trace all binding rules of human conduct back to revelations of the Divine Will recognized on principle only one single law: but the aspect of practical life made even them distinguish between the "lex indicativa" and the "lex præceptiva," between an indication or counsel and precept or command. The "lex indicativa" is Morality, the "lex præceptiva" is the Law.

Codes are the normal expression of the Law. Not all Law is formulated in this way, for there is a recognized Law of custom, but all laws, codified or not, become a part of the prevailing Law. Naturally, and as is only reasonable, all Law is pre-existent in the consciousness of the majority, and the law-giver's rôle is limited to setting down in paragraphs universally acknowledged principles dictated by public opinion. However, there are an appreciable number of historical instances in which this procedure is reversed; the law-giver, without inquiring whether his ideas were in accord with the general conscience, arbitrarily clothed his dictates to the community in paragraphs which it had to accept as Law. It is clear that this procedure is extremely risky. Even if the law-giver possesses superior wisdom, even if he is far in advance of his people and his age, even if his intentions are of the best, there is grave danger that the moral feeling of the people will revolt against the laws thus forced on them. Outwardly they yield to the pressure of public authority, but they obey the Law with a keen inner sense of opposition; a chasm yawns between conscience and the practice of the Law, ideas of Morality and Law become confused, the moral foundation of all laws totters, and the public gets into the habit of regarding the Law as something alien and hostile, which cannot be disregarded with impunity, but which it is not only not culpable, but even meritorious to evade.

An enormous amount has been written on the subject of what a law is, and all this literature expresses in endless words very few and, almost without exception, very mediocre thoughts. I should consider it an unpardonable waste of time to devote any considerable space to this rubbish, either in order merely to quote opinions or to investigate and confute them. Perhaps the best thing said of the laws is Hobbes's description: Civil Law (the law of the country) is nothing but a guarantee of natural Law. It is true that this definition implies a supposition: the existence of natural Law which, however, is not binding in itself but requires the sanctions of the law of the country. Moreover, it is only correct if we add the limitation that it does not guarantee all natural Law, but only a part of it. Hobbes is also forced by his definition of the law of a country to explain what he means by natural Law, and he does not evade this duty. "Natural Law," he says, "is the decree of true Reason (ratiocinatio recta) with regard to what we must do and what avoid for our self-preservation.... Transgression of natural Laws is due to false Reason (ratiocinatio falsa)."

In spite of its vagueness this explanation of Hobbes's shows that what he really means by natural Law is Morality, and in this respect his views on the relation of natural Law to civil Law, that is, of Morality to Law, practically coincide with mine. Nevertheless, he ignobly denies the moral decency of his doctrine of Law when later on he coldly and dryly remarks: All that the state commands is just, all that it forbids is unjust. Saying this he stupidly and obsequiously makes the civil code the source of Law, whereas by his own definition Law (he says "Natural Law") is the source of the civil code. It is more pardonable for Pusendorf, a formal jurist, to say: "Law is the decree (decretum) with which a superior binds his subject (sibi subjectum)." That interpretation of Law is possible if it is considered from outside; it is a means of coercion in the hands of the mighty to subjugate the dependant; this point of view ignores the essential; but Pusendorf has no concern with this, for he makes no claim to be a philosopher, he keeps within the bounds of juridical practice.

The Bishop of Seville, Saint Isidor, the most respected theologian of the time between the last patristic writers and St. Thomas Aquinas, gives the following definition of Law: "Law is an institution (constitutio) made by the people, by which the nobles (majores natu), together with the common folk, have given a sanction to some ordinance." This says little about the essence of Law, but it leads to the question of the origin of laws. On this subject, too, whole libraries full of books have been written since the time of Plato and Aristotle; luckily, for the most part, they now only serve as food for moths and worms.