Among savages, as has been said, there is no formulation of law.
There is the instinct of the individual to preserve his own life,
and there are rules that must be followed if the people are to
survive. As has been truly said: "The love of justice is simply in
the majority of men the fear of suffering injustice." The instinct
of preservation and sheer necessity compel the people almost
unconsciously to follow the rules of their leader.
In most patriarchal societies the fear of the god of the tribe, the
overpowering influence of custom and the unswerving directness of
the punishment of the man who violates it tend to prevent the
development of individuality and of independent thinking; and the
normal attitude of practically every person is to obey the customs
and the laws, although often those laws leave to the individual a
range of action not found in later civilized states. But as the
sense of right and justice and the desire to promote the public
welfare grow, individualism grows also. Each individual, thrown
upon his own resources, learns to think and question and judge. In
democratic states he learns to take upon himself the responsibility
for his acts, and at length the view becomes prevalent that law
exists for the benefit of society. The individual, in judging
himself and his attitude toward society, feels that the law must be
obeyed because obedience promotes the public welfare. Even when he
believes that a law is unwise, or even unjust, he hesitates to
violate it, not only because he might be punished therefor, but
primarily because it has become wrong, according to his conscience,
to violate a law that has been adopted by the representatives of
his fellow citizens as just and beneficial. Thus the individual,
in later even more than in earlier times, obeys the laws not merely
from selfish, but from social and religious motives.
_Questions for Further Consideration_.
Can you name any modern laws that you think have been framed in the
interests of a special social class?
Do you think that the people of to-day are recreant in their
respect for or adherence to law?
What do you consider to be the value of such institutions as those
at West Point and Annapolis in their influence on the enforcement
of law and discipline?
When we speak of "Government of the people, by the people, and for
the people," whom exactly do we mean by "people"? Does the word
have the same meaning in each of these phrases?
Is it ever right to violate a law of the land? Some people contend
that an individual ought to break a human law, provided that it is
contrary to divine law. What is divine law? Who decides? Shall
the individual decide, or is that the duty of the community? Or of
the clergy? Was it right for the Abolitionists to violate the
provisions of the fugitive slave law? Were this handful of men,
able and conscientious as they were, as likely to be right
regarding the welfare of society as the large majority of citizens
whose representatives had enacted the fugitive slave law? If a
person believes our tariff laws to be unjust, is it right for him
to smuggle goods?
Under what circumstances, if any, is it one's duty to disobey a law
of the state? Would the fact that an individual believed it his
duty to violate the law justify a judge in declining to punish him?
Thoreau declined to pay a tax that he believed unjust and accepted
his punishment, declaring that if he paid the penalty he might thus
arouse public sentiment and secure the repeal of the law. Was John
Brown justified in attempting illegally to free slaves by force of
arms?
In Great Britain the House of Lords--one of the law-making
bodies--is also the highest court of appeal, although the judicial
business is mostly done by law lords specially appointed for that
purpose. Ought the same men to make and interpret the law? Why?
_Subjects for Further Study_.
(1) Origin and Growth of Hebrew Law. Hastings, _Dict. of Bible_,
III, 64-67; _Ency. Bib_., III, 2714-8; Kent, _Israel's Laws and
Legal Precedents_, IV, 8-15.
(2) Growth of Primitive Law. Maine, _Ancient Law_, 109-165;
Wilson, _The State_, 1-29.
(3) Judicial Decisions as a Factor in the Development of Modern
Law. _Prin. of Politics_, Chap. VI, Ransom, _Majority Rule and the
Judiciary_.