and as soon as men became conscious of themselves and formed the idea of their own and others’ personalities, they developed a conscience. This all results from the interaction of individual minds. But conscience, after all, is but another phase of the tendency of primeval men to conform their conduct to the general standards. With the advent of the first glimmerings of conscience we have reached the development of the moral instincts, and in after ages law would come to depend upon the moral sentiments.
The two moral sentiments with which law is closely associated and upon which all law depends, are the conceptions of the right and of the just. As we have seen, the social creature developed these customary ways of acting which correspond with his ingrained instinct of preserving his associated community. It is useless to speculate on the aeons required to develop the general conception of right. It was of an infinitely slow and gradual growth. The idea represented numberless individual and herd inductions of the social mind slowly developing into a reasoning mind. These inductions were necessarily judgments upon numberless concrete states of fact. At last a rule of conduct instinctively but consciously felt to be right was evolved, because every one acted in that way, and it must be right. That these judgments were the result of social experience goes without saying, and conduct was said to be right, when language reached the stage capable of expressing the idea, because the social experience showed that such conduct advanced the interests of the social community. What was right was that which accorded with customary ways of acting. The mental processes by which this moral idea of the rightful had been arrived at were not remembered, and they became “the broken potsherds of the past.” The first custom had become a second nature, and each normal social mind of the individuals was furnished with these conceptions of the rightful.
Henceforth the idea of the rightful was instinctive, and it was not furnished by any process of reasoning, as the Socratic dialogues show. The idea of the rightful was solidly buttressed on the sense of shame. Thereupon these instinctive ideas of the rightful became in the mind the directing factors for deliberate reasoning in producing a moral judgment. Since law for primitive man, as we have seen, is simply the generalized conception of the customs acted upon for ages, it must be apparent that the customs result in the moral ideas of what is rightful. Thus it is that Cicero could say that “the mind, the foresight, the deliberate opinion of the community is placed in the laws.” Since law always has been and always will be made by the general opinion and acceptance of the community, it is idle to say that there is no necessary and organic connection between the sentiment of right and the laws.
There is, however, another moral concept that enters into law, for it determines that a law must be a rule for all alike. Every man of ordinary intelligence knows that there is a difference between right and justice. Just what the difference is, he would have no little difficulty in explaining, but he knows that there is a difference, and if he should analyze the conception of justice to the heart of it, he would be compelled to say that justice is the putting of all men on the same basis, in other words, justice requires a rule to be applied to all alike. Going back to the primeval man in the social state, we have found that the natural condition is equality, and the fundamental notion at the basis of justice is, although primordial men were incapable of formulating it, that it is necessary for men living in a social state in a homogeneous condition of society to be granted and to have the same recognition, that is to say an equal right to an equal recognition. Every man has the right to act as others act. Hence each man has the right to do and to act in the customary way in which the other men are acting. It is a truism that customary ways of acting would never develop unless each man was at liberty to act in that way. This is all that liberty means. Yet profound philosophers like Kant and Hegel have thought that they made a discovery when they found the basis of law in liberty and equality. This is simply the assertion that law is based upon customary ways of acting. This thought simply spells equality, or, looked at from the standpoint that the law permits such conduct, it means an equal liberty. But why the philosophers should trumpet over this discovery of liberty and equality as the basis of law passeth all human comprehension. The short answer is that if members of a social community are to develop a custom by all of them acting in a certain way, they must have an equal liberty to act in that way. Without such liberty and equality there could be no custom and hence no law.
When, therefore, primeval men began to fight within the tribe and inflict personal injuries upon each other (and we speak of personal injuries, for injuries as to property were as yet improbable) a custom would develop consonant with justice and right, first, that for a man to injure another was wrong, because it was out of the customary ways of acting and it interfered with the social body and its peace and preservation; and secondly, if an injury was inflicted, justice and equality required that the injured—or, if he was killed, his kindred—had the right to be placed back upon an equality with the injurer. We are before a time when the idea of a compensation for an injury was conceived by humankind. Therefore the only conceivable right was the one to exact the very same injury, that is, the right to be put back upon an equality. We are as yet in the infancy of the law of damages, where no other recompense could be conceived. There was no possible recompense except the exact equivalent given by the lex talionis; an eye for an eye and a tooth for a tooth, or “whosoever sheddeth man’s blood, by man shall his blood be shed.” When it came to be applied, it was not only right and just, but no other remuneration or equivalent could be found. The application of these primitive conceptions will be later shown, but it is here to be said that it ought to go without saying that the idea of justice must have developed long before there were any introspective questionings as to the rightful. Right became a much more generalized conception than justice, for it carried, when fully developed, all the notions involved in proper and correct conduct, when justice was not at all concerned. Righteousness can be applied to conditions of mind, where conduct toward a fellow being is not necessarily involved.
In later ages in the highly developed Roman law of the jurisconsults which thirteen hundred years ago the Emperor Justinian caused to be compiled in the Roman Digest or Pandects, there was prefaced to the great mass of particular rules a general sketch of the law, patterned after the manual of a great law teacher called Gaius. This manual, both as the manual of Gaius and as that of Justinian’s compilation, was called the Institutes of the law. At the very head of the Institutes is a definition of justice which is borrowed from a much earlier Roman definition. Justice is there said to be “the constant and perpetual willingness to render to each one his right.” Among primeval men, among the Roman jurists, and among us to-day is the prevailing idea that what is due to each man, all men have the right to demand, and this demand can be answered only by a general rule which applies alike to all in the community.
Adverting for a moment to the customary ways of acting in the social state and the long ages required to develop them, it is plain that customs as a second nature would be clung to with the greatest stubbornness, for it is easier to act in the habitual way. Even among highly cultivated men “to act is easy, but to think is hard.” We should expect to find customs in full force long after they should have been changed, and this is the history of law. That history may be summed up by saying that men cling to their customs. It is here that ideas of right among reasoning men begin to diverge from ideas of justice. To be just, men must act in the accustomed way, else liberty and equality are lost and men who are barred from the custom stand in a condition of unendurable shame. But to be suited to the newly conceived idea of the rightful in conduct men must develop a new custom; and this takes a long time. Yet, given time enough, the customs and habits tend to follow slowly and hesitatingly toward the rightful in the changing circumstances of a new life. So by the new custom, when properly developed and had a value, all sorts of injuries came to be compensated for in property. This will fully appear in the further history of the law.
We turn now to other factors causing the development of law. For a length of time of which we can form little conception, all kinship was traced only through the mother, and relationship through the father was unknown. But somewhere on the road the initial institution of a marital union developed, and in the nature of things this must have resulted from the knowledge obtained by human beings that children are born of the conjugation of the male and the female. It dawned on the animal beginning to think that some part of the child belonged to the father. But the
