Morals and the Evolution of Man Part 4

I will attempt to answer the questions left unanswered by Descartes. But I must premise one thing. Every definition of consciousness implies a postulate: life. Though at a pinch we can picture life without consciousness, consciousness without life is absolutely inconceivable. I do not undertake to explain what life is, any more than I attempted it above. We must take it as something given. Consciousness, then, is the subjective realization of something objective, the inward realization of something outside. If in a living being a picture of its surroundings is developed, then it absorbs something which is not a necessary part of itself. Of course, this inner image must not be understood to imply an absorption of matter. It is a process in the matter of which the living being is built up. But, all the same, the image of the outer world in the inner being does signify a penetration of the latter by the former.

This image, which follows the changes of the outer world and repeats them in the inner being, is consciousness. It may be shadowy and blurred, or clear and distinct; it may in rapid succession be formed and pa.s.s away, and it can be preserved as a memory; it may reflect a greater or a lesser portion of the outer world; consciousness is accordingly duller or sharper; its contents are scant or plentiful, it retains the images of a shorter or longer series of conditions in the surrounding world. Between nutrition, which is recognized as an essential phenomenon of life, and consciousness a surprising parallelism subsists. Both consist in an absorption of the outer world by the organism; nutrition is the a.s.similation of matter, consciousness that of stimuli. In the process of nutrition the organism digests small quant.i.ties of the outside world; in consciousness it digests the world as a whole.

This parallelism is no mere play of the intellect. If it is followed out it leads to significant ideas if not to actual knowledge. What penetrates from the outer world into the inner being of the organism is vibration, movement, force. Is the matter which is absorbed as nourishment ultimately anything different? Here we come up against the ultimate problems of physics, the various hypotheses regarding the nature of force and matter, the theories that in addition to matter there is an ether, or that the ether is a different, more subtle, form of matter, or that neither matter nor ether exist, but atoms out of which everything is built up, which themselves consist of electrons which are centres of force, motions without material consistency. All these theories, of which the last cannot be grasped by the human understanding, we can leave severely alone. This is not the place to investigate them. But the att.i.tude of the living organism towards the outer world from which it absorbs nourishment and impressions, converting them into power to drive the life machine and trans.m.u.ting them into consciousness, lends peculiar support to the supposition that force and matter are not only inseparable but identical, that in them we must seek a principle, or perhaps regard them themselves as a principle, which must be of the same nature as consciousness, for otherwise it could not be trans.m.u.ted into the latter.

The senses are the means by which the outer world penetrates as an image into the inner being. Before the senses are differentiated the living organism possesses a general sensitiveness; that is to say, that under the influence of the outer world its cell protoplasm undergoes a process of regrouping, resulting in chemical and dynamic changes. The chemical results of stimulus are anabolism and katabolism, a building up and breaking down of the cell content; the dynamic results are movements which in the lowest forms of life are purely mechanical, but in the higher forms adapt the organism to the external influence in so far as they place it either so as to be affected by the latter as long and as powerfully as possible, or else so as to evade it. The living organism can experience no stimulus and respond to it without absorbing and trans.m.u.ting it, converting it into a chemical process or a movement.

This inner process is a subjective realization of something objective, a penetration by the outer world, therefore an elementary consciousness.

In proportion as the general sensitiveness becomes differentiated into specific ones, as the image of the outer world filters through the different coloured gla.s.s panes of the various senses into the inner being of the organism, this image becomes multicoloured and varied.

It lies in the nature of this mechanism that the subjective image is not identical with the objective original, but is modified and even distorted by the panes through which it penetrates to the inner being of the organism. What the subject perceives is never anything but a symbol of the object, never the object itself; but this symbol suffices to enable the consciousness to form an idea of the object, just as letters enable the reader to take in words and thoughts. We must conceive the development of consciousness to go hand in hand with that of the senses.

The more windows the organism can open to the outer world the more easily and the more clearly does its image penetrate. The number of objects which the subject can take in is the measure of the perfection of its consciousness. The protista, lacking specific sense organs and possessing only the general sensitiveness of protoplasm, can form only to a very limited extent and with very little variety an inner realization of the stimuli of the outer world. Its consciousness is necessarily very restricted and exceedingly dim. Consciousness is enlarged and grows clearer as the organism develops and its general sensitiveness is differentiated into specific senses, until we reach the level of man whose consciousness embraces far more of the outer world than does that of any other living creature; because, lacking new senses, he has succeeded in amplifying and enlarging those he possesses, and has by artificial means made himself capable of perceiving stimuli to which he is not directly susceptible and which therefore would have remained unknown to him; to a certain extent he has translated them into a form which his senses can perceive.

I do not overlook any of the difficulties which my attempt to explain consciousness leaves untouched. On all sides the most urgent and disquieting questions arise. Above all, the fundamental question, the most enigmatic of all: how is an external stimulus, that is a movement, a vibration, converted into a sensation, a perception? Further: must we in the consciousness distinguish between the frame and its contents, the conceptual mechanism and the concept? Or do the two coincide? Is there no consciousness without a conceptual content? And is it the movement entering into the organism, the inner realization of the outer world which, trans.m.u.ting itself in an incomprehensible manner into a concept, creates consciousness, becomes consciousness? Is the consciousness of the man standing upon the highest plane of intellectuality the greatest consciousness possible? Does there exist anywhere in the universe a more abundant, perhaps an infinitely more abundant consciousness than that of human beings on the Earth, and will the latter ever rise to this height? It is obvious that a development is in progress. There was a time when the most comprehensive, the clearest consciousness on earth was that of the trilobite or the cephalopod.

Evolution has gone as far as man. Does it stop at that or will it continue?

According to Herbert Spencer evolution is progress from the simple to the complicated. Let us accept this definition. Have we the right to set up a scale of values and place the complicated above the simple? Is the latter not the more perfect because it has more power of resistance, greater durability, and can hold its own triumphantly against all destructive influences? Is not evolution, then, a retrogression from the perfect, because simple, to the more complicated, and therefore more fragile, more easily upset and less capable of resistance to harm? Is it not sheer egocentrism if we appraise the value of living beings according to their greater or less resemblance to ourselves, and judge them to be less or more worthy in proportion to their disparity with us?

Are the fish which, living in the sea wherein we cannot exist, can inhabit the greater part of the globe, are wild duck which fly, swim and walk, not more perfect than we, who have had to conquer the air and the water by artificial means? Is not the mouse's hearing sharper than ours?

The eagle's sight keener? The dog's scent incomparably more delicate?

Has not the carrier pigeon an infinitely better sense of locality than we have? Are not many beasts physically stronger, more nimble and agile than man? His only claim to superiority rests on the greater perfection of his consciousness. Why do not all living creatures partic.i.p.ate equally in the evolution to which this superiority is due? Why does it not take place in every organism and lead the unicellular living being in an unbroken ascent to the level of Goethe or Napoleon, or to a still more lofty one, if such an one exist anywhere in the universe?

If one could believe in a Ruling Power and the plan of the universe as its work, would it not be terribly cruel and revoltingly unjust that this power, instead of treating all living beings alike, should make a kind of selection of grace and lead some up to a higher level while it condemned others to lasting lowliness, and that it should ordain that on the road from the unicellular organism to man, countless connecting links should be left hopelessly behind and not be permitted to continue their ascent? Or must we admit the humiliating conclusion that a greater amount of consciousness does not necessarily imply higher rank and greater dignity, and that a protista, with its almost unimaginably pale and narrow consciousness, can have just as great a feeling of well-being as man with his immeasurably superior intellectual life; that therefore the protista suffers no wrong if it never gets beyond its present stage of evolution; and finally that the amount of the outer world which man can absorb in his consciousness is as far removed from the entirety of the universe as the contents of the protista's consciousness are from that of the human mind? No answer can be found to these questions.

Whatever purports to be an answer, be it introduced as theology or as philosophy, is visionary or nonsensical. We must resign ourselves to moving in a very small circle moderately illuminated by Reason, while all around, if we seek to penetrate beyond it, we perceive gruesome darkness.

Evolution, that is a progress from the comparatively simple to the more complicated, is a striking fact--I say comparatively simple advisedly, for even in the unicellular organism the processes are far removed from the absolutely simple. We do not know from what part of the organism the impulse to evolution comes. Here we meet with the same mystery which shrouds growth, its duration, its measure and its bounds. As the conception is lacking, a word has been found, viz., entelechy, which Driesch introduced into biology, the co-operation of all parts of the organism for the purpose not only of preserving it but also of making it more efficient in the matter of self-preservation and more perfect. A critical investigation of entelechy would involve the broaching of the whole question of life. It does not come within the scope of this work.

I shall therefore content myself with a very few remarks. Entelechy works as if it were reasonable and acted with a set purpose. If you think it out exhaustively it forces you to the a.s.sumption that life is an intellectual principle, even in the protoplasm of the cell, long before there is any perceptible trace of consciousness; that this intellectual principle makes use of matter, builds it up, organizes it, moulds it into material and tools for construction, and sets up a mechanism in which and by which it develops itself. As far as we can see the purpose of life is life itself. Entelechy directs all the work of the organism in such a way that it becomes more and more capable of self-preservation, that its efficiency becomes greater, that it can absorb more of the outer world and can react more vigorously upon the outer world. In other words, life strives continuously to make its embodiments more permanent, securer, richer and more manifold.

However, if we do not know how the impulse to evolution originates, we can at least form an idea of the mechanism of evolution. Fundamentally life consists in the absorption of cosmic movements or vibrations, and their transformation into another form of movement. The living cell is a machine which makes use of cosmic energy for physio-chemical work.

Metabolism, warmth, electric manifestations, movement, and as their concomitant a graduated consciousness, are the result of this work which is carried out by cosmic energy in the cell power machine.

To start with, this machine works in the very simplest fashion. It uses up its motive power as fast as it acquires it. Energy flows in and immediately flows out again in another form. The organism is like a pipe or a vessel without a bottom, so that its contents cannot be stored. The lower organisms which obey tropisms are such bottomless vessels. They are continually and inevitably subjected to the same attractions and repulsions and have no means to withstand them. But at a certain stage of evolution--how? why? Driesch replies: Entelechy!--a new part is developed in the machine, something like the cam on a cogwheel which forces it to come to rest. Or, to keep to the earlier simile, the bottomless vessel acquires a bottom with a tap that can be opened and closed. With this arrangement the organism is able to store the energy it has received and then to make use of it according to its needs, to do much more or much less work with it, to achieve much greater or much smaller effects, than it would be capable of doing with the amount of energy it receives from outside in a given unit of time. It is obvious how much more efficient the organism becomes if it can store up energy and can adapt to its needs the amount used up. This new part of the machine is Inhibition.

It appears early, and takes part in the general development of the organism; it is indeed the strongest factor in this development. Before Inhibition intervenes the organism has only one response to stimulus: reflex action. This is of the character of an electric discharge. It may be stronger or weaker, but is uniform in kind. It varies quant.i.tatively but not qualitatively. In the lower organisms it is a contraction of the cell protoplasm, a movement. In the higher organisms, in which the life processes are carried out on the principle of the division of labour and which have developed various organs for this purpose, each organ performs the action of its specific function; the muscle contracts, the nerve sends out a nervous impulse, the gland forms a secretion, and so on. All reflex actions have this in common, that they serve no other purpose than that of relaxing tension in the organism. They do not imply any co-ordinated effort to promote the comfort and the welfare of the living being. They cannot fulfil any complicated task. They exhaust the organism which, after a series of reflex actions, becomes insensitive to stimuli and must rest for a time before it can react again.

Beginning from that stage of evolution where inhibition intervenes, reflex action loses the character of an automatic response to impulse and becomes disciplined. Inhibition tries to suppress reflex action. Its success is more or less complete according to the sensitiveness and life energy of the tissue receiving the stimulus and the degree to which the mechanism of inhibition is developed. The organism retains its tension, remains charged with energy, and is able to carry out work for definite purposes. In place of anarchistic reflex action which occurs regardless of the needs of the organism, we find economy of energy, co-ordination of effort, movement directed to a profitable end. It is only inhibition which can raise the organism from its state of pa.s.sivity, its helpless dependence upon tropism, to a being in which a will is beginning to dawn and which by its will becomes self-determinative. Inhibition is a function of the will; it is the will's tool. Even Plato dimly perceived this, and he expresses it in the metaphorical language peculiar to himself, when, in the "Republic," he compares a human being to a creature made up of three animals: a hundred-headed sea-serpent which must at one and the same time be fed and tamed, a blind lion, and a man who tames the serpent by means of the lion. These three animals are desire ([Greek: epithumia]), courage ([Greek: thumos]), and mind ([Greek: nous]). We say in biological language, reflex action, inhibition, and will or volitional reason.

All the concepts that are referred to here: purpose, co-ordination, inhibition and will, are every one of them dependent upon one fundamental concept, consciousness. Without it they are unthinkable.

Schopenhauer's unconscious will is a word without meaning. I have postulated consciousness as the inseparable concomitant of life. It is probably the essence of life. In its lowest stage it is too dim, its contents too meagre and blurred, properly to distinguish the organism in which it dwells from the world around. In a higher state of development, when it gradually grows clearer and begins to be filled with more sharply defined ideas, it learns to keep its organism and the surrounding world apart, and tries to make the att.i.tude of the former to the latter one of self-defence, self-preservation and self-development.

From this stage of development onward, concepts begin to connect and group themselves in such a way that consciousness contains not only an image of the immediate present, but also memories of the past and a forecast of the future. The ability to prolong the present into the future, to understand the actual as a cause of the effects that follow and to foresee these effects, that is the starting point of logic and reason. It is the necessary antecedent of the will, which would have no meaning if it were not the effort to realize a conception of actions and their consequences, previously worked out by consciousness. Will is a function of consciousness which, in pursuance of the well-known biological law, creates an instrument for its purposes, and this instrument is inhibition. The higher an organism stands on the ladder of evolution the more energetically and surely does inhibition work, the nicer and the more masterly does its intervention in the original reflex actions grow.

Thanks to the piling up of reserves of energy, which is a result of inhibition, the organism can carry out its work of differentiation, can develop organs and organic systems, and obtain the power to perform more complicated functions; these render it ever more independent of the outer world and enable it to affect the outer world to an increasing extent. Inhibition plays an important part in differentiation. Its apparatus becomes organized. The nerve centres from which the inhibition proceeds form a ladder of which each rung is subordinate to the next.

The peripheral nerves are controlled by the nerve centres in the spinal cord, these again by the centres in the medulla oblongata, and then in succession by the cerebellum and the cerebrum, and finally by the corticle. On the principle of least resistance, on which all life is based, the highest centres of inhibition unburden themselves by granting the lower ones a certain measure of independence. The reaction to the most ordinary and frequent stimuli is controlled and organized in its character and strength by the apparatus of inhibition, so that it ensues automatically, and no active inhibition, that is, no conscious effort of the will, is required. The simplest of these automatic reflex movements take place below the level of consciousness.

Those organized complexes of movement, however, which we call instincts, are carefully watched by the consciousness and subjected to severe check if they appear to run counter to the supposed interest of the organism.

The hereditary complexes of movement const.i.tuting instinct are highly organized and oppose inhibition, only yielding to it when it is stronger than they are. This can be observed in animals which are capable of taming and training. All the artificial actions and omissions that man teaches them are triumphs of inhibition over automatism. Among human beings it is only the elect who can vigorously suppress their instincts by inhibition directed by Reason. The being that has attained the summit of organic evolution on earth is man, in whom only the lower, vegetative life processes are liable to the influence of tropism and primary reflex actions, while all the higher and highest functions are the work of Reason, which arms the will with inhibition and suppresses all impulses and actions that hinder its purposes. It is characteristic of these functions that they are first worked out as concepts by the consciousness before they are realized as movements.

It was essential for Morality to find this whole organic structure ready to its hand before it could become a factor in human life. This structure had been developed and perfected by the organism for its own purposes, for the defence and enrichment of its life, to ward off painful and obtain pleasurable feelings. Morality took possession of it and used it for its own ends, which do not at the first glance coincide with the aims which the individual immediately perceives and imagines, and may indeed be diametrically opposed to these, preventing pleasurable emotions, causing him pain and even endangering his life.

But Morality, which is a creation of society, was only able to dominate the individual and gain control of the organic apparatus of his vital economy, because its purpose is directed towards the same goal as the tendencies of the individual organism, prolonging them beyond the individual's scope, aiming at his preservation, and thus coinciding with his instinct for self-preservation.

Morality limits the individual's vainglory and subordinates him to the community; it is the condition on which the community allows the individual to partic.i.p.ate in the mightier and more varied means of protection and the enrichment of existence which it has to offer. But apart from this somewhat remote advantage of Morality, there is another immediate one for the individual: it consists in the continual exercise and consequent strengthening of inhibition; therefore, as we have learnt to see in inhibition the main factor in the development and differentiation of all living creatures, it offers a means of raising the individual to biological perfection. The faculty of inhibition, being in a continual state of strong tension, makes automatic reflexes subject to the will, makes blind impulses obedient to the somewhat less blind reason, and helps man along the path of evolution from the status of a creature of instinct to that of a thinking personality of strong character, capable of judgment and foresight, a personality which does not seek to attain the pleasurable emotions necessary to every living creature by pandering to his senses and satisfying the appet.i.tes of the flesh, but achieves them by gratification of a higher order, by the triumph of the intellect over vegetative life, by strengthening the will in relation to the stimuli of the outer world and the organs, by taking pleasure in the fact that the will is content with its sway. These are harsh but subtle pleasures which, when they continue to preponderate in the consciousness, bring about that state of subjective happiness which is in the highest degree beneficial to life.

Morality is an arrangement which has arisen from the needs of society; that is to say, it is not innate, but is an artificial inst.i.tution of the race. However, it grafts itself upon the natural organs and attributes of man, and thus, from being a sociological phenomenon, it becomes a biological one. The idea that Morality is something absolute, a cosmic force, and that it would still exist and be valid if there were no human beings, and even if the earth had no existence, I have refuted with scorn. We must hold fast to the fact that Morality is a law of human conduct, that it is in force only among mankind, and that apart from mankind it is unthinkable. As, however, it becomes a differentiated function of the apparatus of inhibition, it partic.i.p.ates in the general processes of life and leads us to that point where, indeed, we face the unnerving outlook upon the absolute and the question of eternity.

My arguments have led me to many phenomena that can be established and interpreted as facts of experience, but the explanation of which lies beyond the power of the human mind. We have examined the riddle of life, and we have distinguished therein a number of inexplicable things: the lack of a beginning, sensitiveness to stimuli, consciousness, the transformation of vibrations into sensations and concepts, the will, and inhibition. We are forced to the conclusion that the only discernible aim of life's activities is the preservation of life, or, more shortly, that life is its own aim and object. Morality, too, either openly or by implication, sets itself the one clearly demonstrable task of ensuring to the individual the preservation and security of his existence in a higher sphere than that of individual vegetative life processes. Thereby it fits into the scheme of existence, its mysteries and aims, and becomes an integral part of the cycle of life which emerges from eternity and returns to it.

CHAPTER IV

MORALITY AND LAW

The coercion which the community exercises upon its members, by means of which it forces them to adapt their actions and abstention from action to the standard it has set up, has two forms: Custom and Law. Are the two really different? What is their relation, one to the other? These are questions worth investigating.

Ever since the earliest times, grave men have meditated on the relation between Custom and Law. They were forced by evidence and practical experience to note a difference between the two inst.i.tutions, but at the same time they had the definite impression that they trace their origin to the same source. Socrates distinguishes between the written laws of his country and the unwritten ones which express the will of the G.o.ds.

The former const.i.tute positive Law which the citizen must observe and to which he must submit; the latter, however, are higher, for they emanate from the G.o.ds themselves. The immutability of the unwritten laws is a proof that they are superior to the written ones. Written laws vary from state to state. They are the work of individual law-givers who were sometimes wise men and sometimes unreasonable tyrants. But all contain certain precepts which are everywhere alike, which everywhere impose the same rules upon man. It is almost as if one and the same law-giver had co-operated in the making of all the laws that obtain in the different towns and countries, and are so unlike one another in many points. This common law-giver, whose will is manifest in all laws, however far removed they be from one another, is the Deity. That is essentially Socrates' train of thought as given by Xenophon in his _Memorabilia_. The Attic sage speaks the language of his time, which, by the way, is still that of many present-day people. The Deity, whose will permeates all written laws and to whom they may be traced, is the principle of Morality. Hugo Grotius, in a manner more appropriate to modern thought, expresses it thus: "Law and Morality spring from the same source, namely, the strong social instinct natural to man. They bear witness to reasonable solicitude for the welfare of the community."

This placing on an equality of Law and Custom, of _jus_ and _mos_, is very remarkable in such a strictly professional thinker, such a positive jurist as Grotius. Kant discriminates between the doctrine of Virtue and the doctrine of Law; he keeps them apart, but he emphasizes their connexion, and the two together make up his doctrine of Ethics.

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 att.i.tude 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 nebulae. 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 a.n.a.lytical mind. Recognition of the essential unity of both phenomena explains an a.s.sumption 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 a.s.sumption 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 p.r.o.ne 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 att.i.tude 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 G.o.d, 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 const.i.tutional 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 const.i.tution 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 const.i.tution. 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 const.i.tution 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 const.i.tution 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, const.i.tutes 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 G.o.ds 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 ma.s.ses. For them "life is not the supreme thing."

There are things they value more highly. The ma.s.ses 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 n.o.blest 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 n.o.blest 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 n.o.blest 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 ma.s.ses, to the heights of Morality, the habitual abode of superior minds. At the theological stage of civilization refuge is sought with the G.o.ds 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 ma.s.ses. They shut themselves up in cloistered cells away from mankind and held mystic intercourse with G.o.d. 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 G.o.d's promised millennium managed to keep their heads above water despite the crushing spectacle of the life of those times.

Long before the Christian era, the Greeks of n.o.ble 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 n.o.bler 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 ma.s.s 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 a.s.sociation 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 sn.o.b, 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 ma.s.ses take revenge with fists and cudgels, often with b.l.o.o.d.y 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 G.o.d 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 G.o.d fights on his side.