"Law comes with property, marriage and government; the lowest societies manage to get along without it.
'I have lived with communities of savages in South America and in the East,' said Afred Russel Wallace [British naturalist, 1823-1913], 'who have no laws or law-courts but the public opinion of the village freely expressed. Each man scrupulously respects the rights of his fellows, and any infraction of those rights rarely or never takes place. In such a community all are nearly equal.'
Herman Melville writes similarly of the Marquesas Islanders: 'During the time I lived among the Typees no one was ever put upon his trial for any violence to the public. Everything went on in the valley with a harmony and smoothness unparalleled, I will venture to assert, in the most selec, refined, and pious associations of mortals in Christendom.'
The old Russian Government established courts of law in the Aleutian Islands, but in fifty years those courts found no employment.
'Crimes and offenses,' reports Brinton, 'were so infrequent under the social system of the Iroquois that they can scarcely be said to have had a penal code.'
Such are the ideal -- perhaps the idealized -- conditions for whose return the anarchist perennially pines."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935 (formatting and italics added)
"Law comes with property, marriage and government; the lowest societies manage to get along without it. [...] Certain amendments must be made to these descriptions. Natural societies are comparatively free from law first because they are ruled by custom as rigid and inviolable as any law; and secondly because crimes of violence, in the beginning, are considered to be private matters, and are left to bloody personal revenge."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935
"Underneath all phenomena of society is the great terra firma of custom, that bedrock of time-hallowed modes of thought and action which provides a society with some measure of steadiness and order through all absence, changes, and interruptions of law. Custom gives 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 men sane; for if there were no grooves along which thought and action might move the unconscious ease, the mind would be perpetually hesitant, and would soon take refuge in lunacy. A law of economy works in instinct and habit, in custom and convention: the most convenient mode of response to repeated stimuli or traditional situations is automatic response. Thought and innovation are disturbances of regularity, and are tolerated only for indispensable readaptations, or promised gold.
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. To violate law is to win the admiration of half the populace, who secretly envy anyone who can outwit this ancient enemy; to violate custom is to incur almost universal hostility. For custom rises out of the people, where as law is forced upon them from above; law is usually a decree from a master, but custom is the natural selection of those modes of action that have been found most convenient in the experience of the group. Law partly replaces custom when the state replaces the natural order of the family, the clan, and the tribe, and the village community; it more fully replaces custom when writing appears, and laws graduate from a code carried down in the memory of elders and priests into a system of legislation proclaimed in written tables. But the replacement is never complete; in the determination and judgment of human conduct custom remains to the end the force behind the law, the power behind the throne, the last "magistrate of men's lives."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935 (italics added)
Pg.136
"[...] For many centuries, and among many people, resort to courts remained optional; and where the offended party was dissatisfied with the judgment rendered, he was still free to seek personal revenge.
In many cases disputes were settled by a public contest between the parties, varying in bloodiness from a harmless boxing-match -- as among the wise Eskimos -- to a duel to the death. Frequently the primitive mind resorted to an ordeal not so much on the medieval theory that a deity would reveal the culprit as in the hope that the ordeal, however unjust, would end a feud that might otherwise embroil the tribe for generations. Sometimes accuser and accused were asked to choose between two bowls of food of which one was poisoned; the wrong party might be poisoned (usually not beyond redemption), but then the dispute was ended, since both parties ordinarily believed in the righteousness of the ordeal. Among some tribes it was the custom for a native who acknowledged his guilt to hold out his leg and permit the injured party to pierce it with a spear. Or the accused submitted to having spears thrown at him by his accusers; if they all missed him he was declared innocent; if he was hit, even by one, he was adjudged guilty, and the affair was closed. From such early form the ordeal persisted through the laws of Moses and Hammurabi and down into the Middle Ages; the duel, which is one form of the ordeal, and which historians thought dead, is being revived in our own day. So brief and narrow, in some respects, is the span between primitive and modern man; so short is the history of civilization."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935 (italics added)
Pg.138
"In general the individual has fewer 'rights' in natural society than under civilization. Everywhere man is born in chains: the chains of heredity, of environment, of custom, and of law. The primitive individual moves always within a web of regulations incredibly stringent and detailed; a thousand tabus restrict his action, a thousand terrors limits his will. The natives of New Zealand were apparently without laws, but in actual fact rigid custom ruled every aspect of their lives. Unchangeable and unquestionable conventions determined the sitting and the rising, the standing and the walking, the eating, drinking an sleeping of the natives of Bengal. The individual was hardly recognized as a separate entity in natural society; what existed was the family and the clan, the tribe and the village community; it was these that owned land and exercised power. Only with the coming of private property, which gave him economic authority, and of the state, which gave him a legal status and defined rights, did the individual begin to stand out as a distinct reality. Rights so not come to us from nature, which knows no rights except cunning and strength; they are privileges assured to individuals by the community as advantageous to the common good. Liberty is a luxury of security; the free individual is a product and a mark of civilization."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935 (italics added)
"[...] Liberty is a luxury of security; the free individual is a product and a mark of civilization."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.3, Pt.III, 1935
No comments:
Post a Comment