The Story of Civilization: Political Elements – Law

“When to this natural basis of custom a supernatural sanction is added by religion, and the ways of one’s ancestors are also the will of the gods, then custom becomes stronger than law, and subtracts substantially from primitive freedom.”
Will Durant, “Our Oriental Heritage”, page 26.
(“Execution of a Moroccan Jewess”, paint by Alfred Dehodencq, 1860. Sol Hachuel, 17, was decapitated by the false accusation of apostasy, that is, the resignation of her previous religion. Thirteen countries, even today, apply the death penalty for such “crime”. Yes, it’s 2019.)

SUMMARY: In the beginning, laws were customs, and man did not have individual rights, but with property, marriage and government, laws evolved, and the individual emerged.

The law comes with property, marriage, and government; more primitive societies manage to do without it. Natural societies are comparatively free from laws, first because they are governed by customs as rigid and inviolable as any law; and secondly because violent crimes, at first, are regarded as private issues, and are left to bloody personal vengeances.

Customs give the same stability to the group that heredity and instinct give to the species, and habit to the individual. It is the routine that keeps man sane. Thought and innovation are disturbances of regularity, and are tolerated only for indispensable readaptations, or for some promised advantage. When to this natural basis of customs a supernatural sanction is added by religion, and the dictates of the ancestors are also the desires of the gods, then customs become stronger than laws, and subtract substantially from primitive freedom. Customs arise from within the people itself, while the law is imposed from top to bottom; the law is usually a decree of the master, but custom is the natural selection of those ways of acting which were considered more convenient based on the experience of the group.

The first stage in the evolution of laws was personal revenge. The second was the replacement of revenge for material damages. Since fines and compositions to be paid in order to avoid revenge had to be measured according to offenses and damages, a third step toward law and civility was taken through the formation of courts. The fourth advance in the growth of the law was the chief or the state accepting the obligation to prevent and punish the error. Thus, the chief becomes not only a judge but a legislator; and to the general body of “common law” derived from the customs of a given group is added a body of “positive law” derived from government decrees; in the first case, laws grow from the bottom up; in the other they are given from top to bottom.

Generally, the individual has fewer “rights” in natural society than under civilization. “Man is born free, but everywhere he is in chains”, said Rousseau: the chains of heredity, the environment, customs, and law. The individual was rarely recognized as a separate entity in natural society; what existed was the family and the clan, the tribe and the village community; these were the masters of the land and those who wielded power. Only with the advent of private property, which endowed him with economic authority, and the state, which granted him legal status and defined rights, did the individual begin to stand out as a distinct reality. Rights do not come to us from nature, which knows no rights other than cunning and force; they are privileges granted to the individual by the community, because they are considered advantageous to the common good. Freedom is a luxury of security; the free individual is a product and the mark of civilization.

 


  1. Which three institutions give rise to the law?
  2. How do primitive societies manage to remain without laws?
  3. What are customs?
  4. What are the four stages of evolution of the law?
  5. What gives rights to the individual?

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