Besides local contiguity, however, there is a second principle which greatly helps to shape the social order, as soon as society is sufficiently advanced in its arts and industries to have taken firm root, so to speak, on the earth's surface. This is the principle of private property, and especially of private property in land. The most fundamental of class distinctions is that between rich and poor. That between free and slave, in communities that have slavery, is not at first sight strictly parallel, since there may be a class of poor freemen intermediate between the nobles and the slaves; but it is obvious that in this case, too, private property is really responsible for the mode of grading. Or sometimes social position may seem to depend primarily on industrial occupation, the Indian caste-system providing an instance in point. Since, however, the most honourable occupations in the long run coincide with those that pay best, we come back once again to private property as the ultimate source of social rank, under an economic system of the more developed kind.
In this brief sketch it has been impossible to do more than hint how social organization is relative to numbers, which in their turn are relative to the skill with which the food-quest is carried on. But if, up to a certain point, it be true that the structure of society depends on its mass in a more or less physical way, there is to be borne in mind another aspect of the matter, which also has been hinted at as we went rapidly along. A good deal of intelligence has throughout helped towards the establishing of the social order. If social organization is in part a natural result of the expansion of the population, it is partly also, in the best sense of the word, an artificial creation of the human mind, which has exerted itself to devise modes of grouping whereby men might be enabled to work together in larger and ever larger wholes.
Regarded, however, in the purely external way which a study of its mere structure involves, society appears as a machine—that is to say, appears as the work of intelligence indeed, but not as itself instinct with intelligence. In what follows we shall set the social machine moving. We shall then have a better chance of obtaining an inner view of the driving power. We shall find that we have to abandon the notion that society is a machine. It is more, even, than an organism. It is a communion of souls—souls that, as so many independent, yet interdependent, manifestations of the life-force, are pressing forward in the search for individuality and freedom.
[CHAPTER VII]
LAW
The general plan of this little book being to start from the influences that determine man's destiny in a physical, external, necessary sort of way, and to work up gradually to the spiritual, internal, voluntary factors in human nature—that strange "compound of clay and flame"—it seems advisable to consider law before religion, and religion before morality, whether in its collective or individual aspect, for the following reason. There is more sheer constraint to be discerned in law than in religion, whilst religion, in the historical sense which identifies it with organized cult, is more coercive in its mode of regulating life than the moral reason, which compels by force of persuasion.
To one who lives under civilized conditions the phrase "the strong arm of the law" inevitably suggests the policeman. Apart from policemen, magistrates, and the soldiers who in the last resort must be called out to enforce the decrees of the community, it might appear that law could not exist. And certainly it is hard to admit that what is known as mob-law is any law at all. For historical purposes, however, we must be prepared to use the expression "law" rather widely. We must be ready to say that there is law wherever there is punishment on the part of a human society, whether acting in the mass, or through its representatives. Punishment means the infliction of pain on one who is judged to have broken a social rule. Conversely, then, a law is any social rule to the infringement of which punishment is by usage attached. So long as it is recognized that a man breaks a social rule at the risk of pain, and that it is the business of everybody, or of somebody armed with the common authority, to make that risk a reality for the offender, there is law within the meaning of the term as it exists for anthropology.
Punishment, however, is by its very nature an exceptional measure. It is only because the majority are content to follow a social rule, that law and punishment are possible at all. If, again, every one habitually obeys the social rules, law ceases to exist, because it is unnecessary. Now, one reason why it is hard to find any law in primitive society is because, in a general way of speaking, no one dreams of breaking the social rules.
Custom is king, nay tyrant, in primitive society. When Captain Cook asked the chiefs of Tahiti why they ate apart and alone, they simply replied, "Because it is right." And so it always is with the ruder peoples. "'Tis the custom, and there's an end on't" is their notion of a sufficient reason in politics and ethics alike. Now that way lies a rigid conservatism. In the chapter on morality we shall try to discover its inner springs, its psychological conditions. For the present, we may be content to regard custom from the outside, as the social habit of conserving all traditional practices for their own sake and regardless of consequences. Of course, changes are bound to occur, and do occur. But they are not supposed to occur. In theory, the social rules of primitive society are like "the law of the Medes and Persians which altereth not."
This absolute respect for custom has its good and its bad sides. On the one hand, it supplies the element of discipline; without which any society is bound soon to fall to pieces. We are apt to think of the savage as a freakish creature, all moods—at one moment a friend, at the next moment a fiend. So he might be, if it were not for the social drill imposed by his customs. So he is, if you destroy his customs, and expect him nevertheless to behave as an educated and reasonable being. Given, then, a primitive society in a healthy and uncontaminated condition, its members will invariably be found to be on the average more law-abiding, as judged from the standpoint of their own law, than is the case any civilized state.