It probably would have surprised the early Englishman if he had been told that either he or anybody else did not know the law—still more that there was ever any need for any parliament or assembly to tell him what it was. They all knew the law, and they all knew that they knew the law, and the law was a thing that they knew as naturally as they knew fishing and hunting. They had grown up into it. It never occurred to them as an outside thing.
So it has been found that where you take children, modern children, at least boys who are sons of educated parents, and put them in large masses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certain set of customs which are the same thing to them as law, and which indeed are the same as law. They have tried in Johns Hopkins University experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customs will grow up, and it is also quite singular, and a thing that always surprises the socialist and communist, that about the earliest concept at which they will arrive is that of private property! They will soon get a notion that one child owns a stick, or toy, or seat, and the others must respect that property. This I merely use as an illustration to show how simple the notion of law was among our ancestors in England fifteen hundred years ago, and how it had grown up with them, of course, from many centuries, but in much the same way that the notion of custom or law grows up among children.
The "law" of the free Angelo-Saxon people was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed by everyone. It was five hundred years before the notion crept into the minds, even of the members of the British Parliaments, that they could make a new law. What they supposed they did, and what they were understood by the people to do, was merely to declare the law, as it was then and as it had been from time immemorial; the notion always being—and the farther back you go and the more simple the people are, the more they have that notion—that their free laws and customs were something which came from the beginning of the world, which they always held, which were immutable, no more to be changed than the forces of nature; and that no Parliament, under the free Angelo-Saxon government or later under the Norman kings who tried to make them unfree, no king could ever make a law but could only declare what the law was. The Latin phrase for that distinction is jus dare, and jus dicere. In early England, in Anglo-Saxon times, the Parliament never did anything but tell what the law was; and, as I have said, not only what it was then but what it had been, as they supposed, for thousands of years before. The notion of a legislature to make new laws is an entirely modern conception of Parliament.
The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modern, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the national Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves.
Statutes with us are recent, legislatures making statutes are recent everywhere; legislatures themselves are fairly recent; that is, they date only from the end of the Dark Ages, at least in Anglo-Saxon countries. Representative government itself is supposed, by most scholars, to be the one invention that is peculiar to the Anglo-Saxon people.
I am quite sure that all the American people when they think of law in the sense I am now speaking of, even when they are not thinking necessarily of statute law, do mean, nevertheless, a law which is enforced by somebody with power, somebody with a big stick. They mean a law, an ordinance, an order or dictate addressed to them by a sovereign, or at least by a power of some sort, and they mean an ordinance which if they break they are going to suffer for, either in person or in property. In other words, they have a notion of law as a written command addressed by the sovereign to the subject, or at least by one of the departments of government to the citizen. Now that, I must caution you, is in the first place rather a modern notion of law, quite modern in England; it is really Roman, and was not law as it was understood by our Anglo-Saxon ancestors. He did not think of law as a thing written, addressed to him by the king. Neither did he necessarily think of it as a thing which had any definite punishment attached or any code attached, any "sanction," as we call it, or thing which enforces the law; a penalty or fine or imprisonment. There are just as good "sanctions" for law outside of the sanctions that our people usually think of as there are inside of them, and often very much better; for example, the sanction of a strong custom. Take any example you like; there are many states where marriage between blacks and whites is not made unlawful but where practically it is made tremendously unlawful by the force of public opinion [mores]. Take the case of debts of honor, so called, debts of gambling; they are paid far more universally than ordinary commercial debts, even by the same people; but there is no law enforcing them—there is no sanction for the collection of gambling debts. And take any custom that grows up. We know how strong our customs in college are. Take the mere custom of a club table; no one dares or ventures to supplant the members at that table. That kind of sanction is just as good a law as a law made by statute and imposing five or ten dollars' penalty or a week's imprisonment. And judges or juries recognize those things as laws, just as much as they do statute laws; when all other laws are lacking, our courts will ask what is the "custom of the trade." These be laws, and are often better enforced than the statute law; the rules of the New York Stock Exchange are better enforced than the laws of the state legislature. Now all our early Anglo-Saxon law was law of that kind. For the law was but universal custom, and that custom had no sanction; but for breach of the custom anybody could make personal attack, or combine with his friends to make attack, on the person who committed the breach, and then, when the matter was taken up by the members of both tribes, and finally by the witenagemot as a judicial court, the question was, what the law was. That was the working of the old Anglo-Saxon law, and it was a great many centuries before the notion of law changed from that in their minds. And this "unwritten law" perdures in the minds of many of the people today.
3. Religion and Social Control[275]
As a social fact religion is, indeed, not something apart from mores or social standards; it is these as regarded as "sacred." Strictly speaking there is no such thing as an unethical religion. We judge some religions as unethical because the mores of which they approve are not our mores, that is, the standards of higher civilization. All religions are ethical, however, in the sense that without exception they support customary morality, and they do this necessarily because the values which the religious attitude of mind universalizes and makes absolute are social values. Social obligations thus early become religious obligations. In this way religion becomes the chief means of conserving customs and habits which have been found to be safe by society or which are believed to conduce to social welfare.
As the guardian of the mores, religion develops prohibitions and "taboos" of actions of which the group, or its dominant class, disapproves. It may lend itself, therefore, to maintaining a given social order longer than that order is necessary, or even after it has become a stumbling-block to social progress. For the same reason it may be exploited by a dominant class in their own interest. It is in this way that religion has often become an impediment to progress and an instrument of class oppression. This socially conservative side of religion is so well known and so much emphasized by certain writers that it scarcely needs even to be mentioned. It is the chief source of the abuses of religion, and in the modern world is probably the chief cause of the deep enmity which religion has raised up for itself in a certain class of thinkers who see nothing but its negative and conservative side.
There is no necessity, however, for the social control which religion exerts being of a non-progressive kind. The values which religion universalizes and makes absolute may as easily be values which are progressive as those which are static. In a static society which emphasizes prohibitions and the conservation of mere habit or custom, religion will also, of course, emphasize the same things; but in a progressive society religion can as easily attach its sanctions to social ideals and standards beyond the existing order as to those actually realized. Such an idealistic religion will, however, have the disadvantages of appealing mainly to the progressive and idealizing tendencies of human nature rather than to its conservative and reactionary tendencies. Necessarily, also, it will appeal more strongly to those enlightened classes in society who are leading in social progress rather than to those who are content with things as they are. This is doubtless the main reason why progressive religions are exceedingly rare in human history, taking it as a whole, and have appeared only in the later stages of cultural evolution.