degraded.
Law as we have it has a division that may not be entirely logical but it is exceedingly convenient. It is the division into public law, which governs the relation of the individual to the social group, and private law, which governs the relations of individuals to other individuals in the group. Among these first men, the region of private law had no material upon which to exist. There was no property belonging to individuals or families, nor was there any opportunity for property, hence there was no stealing, no personal property law, no real property, no contract nor tort involving an injury to property, or a violation of a property right; there was no family law of domestic relations of husband and wife, parent and child, for the loose relations of men and women left no field for such law. There was no law either as to personality, since there was no such idea as personality.
But they had the social instinct and it dictated that every member of the community must not be guilty of conduct such that, in the inherited experience evidenced by customs of the members of the community, it would endanger the social existence. The certain result of this instinct would be that they would all act alike. One who did not act like his fellows must inevitably be forced out of the community. This, to a creature trained to live only as a social being, would be unendurable. If driven out of the community, where could he go? Even the drone ants, although they have wings to escape the wingless workers, who execute them, submit to certain death without hesitation and do this with entire willingness. Hence, from the social instinct, would come that deeply rooted tendency, which has never left man, to suit his conduct to that of his fellows, the desire to please and be pleasing to those with whom he lives in daily contact. This is a simple matter but it is necessarily the governing rule among all social animals. It lies at the basis of all law.
Translated into terms of law, this governing rule means that the conduct of each individual in general toward his fellow men must be in accordance with the general conduct and customary ways of the average man. Stated in another way, this means that every man should act so that his rule of action would be the general rule. We have seen that this rule applies to the social ants. The philosopher Kant thought that he had discovered the basis of all law in the proposition that one should so act that his rule of action could become a general law. This is precisely what primeval men were doing. This is precisely what all social animals have as a rule of conduct. Kant’s discovery was the discovery that men have lived in a social condition. This standard of the conduct of the average man has in many respects never been improved upon.
When a judge to-day lays down the law to a jury by saying that if the defendant was guilty of a want of that care which would have been exercised by a man of ordinary care and prudence under the circumstances, he was guilty of negligence, the judge is charging in the exact terms of the workings of the mind of this ancestral animal. To-day the law is that one who acts to the injury of another contrary to the standard of care and prudence of an ordinary man, is doing something unlawful.
If it be said that this primeval law is wholly in the air because one must use the whole body of law to define an infraction of the law, the answer is plain out of our law to-day. The widest of all present offenses is that of conspiracy, which is defined to be an agreement between two or more to commit an unlawful act or to do a lawful act in an unlawful manner. This unlawful act need not be a criminal act. The whole body of law, civil and criminal, is used to define an infraction of it, for before a man can know that he is agreeing to do an unlawful act, he must know every act that the law declares to be unlawful. The law consoles the defendant by the cheerful words that a man is presumed to know the law, even if lawyers and judges are not so presumed. It is apparent that the principle that all men are presumed to know the law comes from a remote time.
Long ago in the Pleistocene Age, among these naked, helpless brutes, the one law, if expressed, would have covered public and private law, civil and penal law and would have read: Whoever is guilty of any act contrary to the customary ways of acting of the men of the community is guilty of an unlawful act and will be punished by banishment. This is more definite than our law of conspiracy. The poor civilized man can commit the offense of conspiracy by doing with others acts which would be perfectly lawful, if he did them by himself. The primitive man, however, could see in his daily life how others acted, and he had an instinct to act in the same way. But there was no enforcer of this rule of law except the opinion of the whole community. Those ancient forms of punishment, such as killing an offender by a shower of stones, point unmistakably to an enforcement of law by a mob embodying public opinion. Lynch law is merely a reversion to the ways of primeval men. It is more than a mere coincidence, as will later appear, that the general instinctive ways of acting that were produced by the rule of adaptation to surroundings remain still the basis of law. The words of the poet upon the law are strictly true:
On the rock primeval hidden in the past its bases be,
Block by block the endeavoring ages built it up to what we see.
The Behaviorist psychologists have noticed the primitive desires of social men and have tried to define them, but among them they have missed this rule of social conformity so important to a development of law and have not followed it out to where it produces law. Its fundamental effect was to produce in men what we now call shame, the sense or, if it be a better term, the reaction of shame. Shame arises purely from this commendation or disapproval of other beings. Long before he was capable of self-consciously knowing what he felt, the human being had this primitive feeling of shame, of being shamed in the presence of his fellows. Any deviation from the customary ways of his fellows would produce in him the sense of being below the standard of conduct, of having done something that those around him disapproved.
Whether we look at this feeling of shame from the subjective standpoint of the one who has the feeling of being shamed and humiliated, or from the objective standpoint of the rest of the community who look on the individual as being guilty of an act that ought to cause him to be ashamed, the result is the same. Each one of the community was driven to conform to customary ways of acting. This fundamental instinct is still as intense in us as in the original man. It is for law the most important instinct of the animal man, for upon it and not upon force or authority, has depended the growth and development of law. But it fixes, once for all, the important fact that law cannot be changed any faster than the mass of the community changes in opinion or belief. The most absolute despot that has ever lived, the force of legislation or the irrefutable arguments for change, cannot impose upon men a change in law until the mass of the community is ready to accept or has already accepted the change.
Since we are telling the story of law and adverting to general history only so far as necessary, we need say no more than that this primeval man from some tropical center, by the slow process of ages, became scattered over at least much of the then tropical parts of Africa, of Asia, and of Europe. We need not enter into the fierce battles of the anthropologists and ethnologists as to where this center was, nor as to what the original race or races were. It is certain that in the first half of the Pleistocene Age, at the very least two hundred and fifty thousand years ago, the human race became disseminated over various parts of Europe, Africa, and Asia. For probably more than one hundred and fifty thousand years primitive men in their tropical surroundings seem to have made little, if any progress; nor is it likely that they would have made much progress had not Nature forced a change.
To speak metaphorically, we may say that Nature, having seen the utter indolence of this latest animal, under the most favorable surroundings, where he was freed from all the necessities of laboring to preserve his life, began to despair of men as she had already despaired of the other tailless anthropoids, and decided that some change in surroundings was necessary to stir the indolent creature into effort toward self-improvement. At least, natural causes brought on what is called the Ice Age. Geologists tell us that at prior periods of geological history, ages of ice were prevalent. Various causes have been assigned for such a great climatic change, but with those causes we are not concerned. The fact is that the great field of ice began to form far in the north of Europe, not to speak of any other place, and in the ranges like the Alps, the Carpathians, the Caucasus.
Slowly,
