Property, marriage, and religion are the most primary inst.i.tutions. They began in folkways. They became customs. They developed into mores by the addition of some philosophy of welfare, however crude. Then they were made more definite and specific as regards the rules, the prescribed acts, and the apparatus to be employed. This produced a structure and the inst.i.tution was complete. Enacted inst.i.tutions are products of rational invention and intention. They belong to high civilization.

Banks are inst.i.tutions of credit founded on usages which can be traced back to barbarism. There came a time when, guided by rational reflection on experience, men systematized and regulated the usages which had become current, and thus created positive inst.i.tutions of credit, defined by law and sanctioned by the force of the state. Pure enacted inst.i.tutions which are strong and prosperous are hard to find. It is too difficult to invent and create an inst.i.tution, for a purpose, out of nothing. The electoral college in the Const.i.tution of the United States is an example. In that case the democratic mores of the people have seized upon the device and made of it something quite different from what the inventors planned. All inst.i.tutions have come out of mores, although the rational element in them is sometimes so large that their origin in the mores is not to be ascertained except by a historical investigation (legislatures, courts, juries, joint-stock companies, the stock exchange). Property, marriage, and religion are still almost entirely in the mores. Amongst nature men any man might capture and hold a woman at any time, if he could. He did it by superior force which was its own supreme justification. But his act brought his group and her group into war, and produced harm to his comrades. They forbade capture, or set conditions for it. Beyond the limits, the individual might still use force, but his comrades were no longer responsible. The glory to him, if he succeeded, might be all the greater. His control over his captive was absolute. Within the prescribed conditions, "capture" became technical and inst.i.tutional, and rights grew out of it. The woman had a status which was defined by custom, and was very different from the status of a real captive. Marriage was the inst.i.tutional relation, in the society and under its sanction, of a woman to a man, where the woman had been obtained in the prescribed way. She was then a "wife." What her rights and duties were was defined by the mores, as they are today in all civilized society.

Acts of legislation come out of the mores. In low civilization all societal regulations are customs and taboos, the origin of which is unknown. Positive laws are impossible until the stage of verification, reflection, and criticism is reached. Until that point is reached there is only customary law, or common law. The customary law may be codified and systematized with respect to some philosophical principles, and yet remain customary. The codes of Manu and Justinian are examples.

Enactment is not possible until reverence for ancestors has been so much weakened that it is no longer thought wrong to interfere with traditional customs by positive enactment. Even then there is reluctance to make enactments, and there is a stage of transition during which traditional customs are extended by interpretation to cover new cases and to prevent evils. Legislation, however, has to seek standing ground on the existing mores, and it soon becomes apparent that legislation, to be strong, must be consistent with the mores. Things which have been in the mores are put under police regulation and later under positive law. It is sometimes said that "public opinion" must ratify and approve police regulations, but this statement rests on an imperfect a.n.a.lysis. The regulations must conform to the mores, so that the public will not think them too lax or too strict. The mores of our urban and rural populations are not the same; consequently legislation about intoxicants which is made by one of these sections of the population does not succeed when applied to the other. The regulation of drinking-places, gambling-places, and disorderly houses has pa.s.sed through the above-mentioned stages. It is always a question of expediency whether to leave a subject under the mores, or to make a police regulation for it, or to put it into the criminal law. Betting, horse racing, dangerous sports, electric cars, and vehicles are cases now of things which seem to be pa.s.sing under positive enactment and out of the unformulated control of the mores. When an enactment is made there is a sacrifice of the elasticity and automatic self-adaptation of custom, but an enactment is specific and is provided with sanctions.

Enactments come into use when conscious purposes are formed, and it is believed that specific devices can be framed by which to realize such purposes in the society. Then also prohibitions take the place of taboos, and punishments are planned to be deterrent rather than revengeful. The mores of different societies, or of different ages, are characterized by greater of less readiness and confidence in regard to the use of positive enactments for the realization of societal purposes.

2. Common Law and Statute Law[274]

It probably would have surprised the early Englishman if he had been told that either he or anybody else did not know the law--still more that there was ever any need for any parliament or a.s.sembly to tell him what it was. They all knew the law, and they all knew that they knew the law, and the law was a thing that they knew as naturally as they knew fishing and hunting. They had grown up into it. It never occurred to them as an outside thing.

So it has been found that where you take children, modern children, at least boys who are sons of educated parents, and put them in large ma.s.ses by themselves, they will, without apparently any reading, rapidly invent a notion of law; that is, they will invent a certain set of customs which are the same thing to them as law, and which indeed are the same as law. They have tried in Johns Hopkins University experiments among children, to leave them entirely alone, without any instruction, and it is quite singular how soon customs will grow up, and it is also quite singular, and a thing that always surprises the socialist and communist, that about the earliest concept at which they will arrive is that of private property! They will soon get a notion that one child owns a stick, or toy, or seat, and the others must respect that property. This I merely use as an ill.u.s.tration to show how simple the notion of law was among our ancestors in England fifteen hundred years ago, and how it had grown up with them, of course, from many centuries, but in much the same way that the notion of custom or law grows up among children.

The "law" of the free Angelo-Saxon people was regarded as a thing existing by itself, like the sunlight, or at least as existing like a universally accepted custom observed by everyone. It was five hundred years before the notion crept into the minds, even of the members of the British Parliaments, that they could make a new law. What they supposed they did, and what they were understood by the people to do, was merely to declare the law, as it was then and as it had been from time immemorial; the notion always being--and the farther back you go and the more simple the people are, the more they have that notion--that their free laws and customs were something which came from the beginning of the world, which they always held, which were immutable, no more to be changed than the forces of nature; and that no Parliament, under the free Angelo-Saxon government or later under the Norman kings who tried to make them unfree, no king could ever make a law but could only declare what the law was. The Latin phrase for that distinction is _jus dare_, and _jus dicere_. In early England, in Anglo-Saxon times, the Parliament never did anything but tell what the law was; and, as I have said, not only what it was then but what it had been, as they supposed, for thousands of years before. The notion of a legislature to make new laws is an entirely modern conception of Parliament.

The notion of law as a statute, a thing pa.s.sed by a legislature, a thing enacted, made new by representative a.s.sembly, is perfectly modern, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the national Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have a.s.sumed in our minds the main bulk of the concept of law as we formulate it to ourselves.

Statutes with us are recent, legislatures making statutes are recent everywhere; legislatures themselves are fairly recent; that is, they date only from the end of the Dark Ages, at least in Anglo-Saxon countries. Representative government itself is supposed, by most scholars, to be the one invention that is peculiar to the Anglo-Saxon people.

I am quite sure that all the American people when they think of law in the sense I am now speaking of, even when they are not thinking necessarily of statute law, do mean, nevertheless, a law which is enforced by somebody with power, somebody with a big stick. They mean a law, an ordinance, an order or dictate addressed to them by a sovereign, or at least by a power of some sort, and they mean an ordinance which if they break they are going to suffer for, either in person or in property. In other words, they have a notion of law as a written command addressed by the sovereign to the subject, or at least by one of the departments of government to the citizen. Now that, I must caution you, is in the first place rather a modern notion of law, quite modern in England; it is really Roman, and was not law as it was understood by our Anglo-Saxon ancestors. He did not think of law as a thing written, addressed to him by the king. Neither did he necessarily think of it as a thing which had any definite punishment attached or any code attached, any "sanction," as we call it, or thing which enforces the law; a penalty or fine or imprisonment. There are just as good "sanctions" for law outside of the sanctions that our people usually think of as there are inside of them, and often very much better; for example, the sanction of a strong custom. Take any example you like; there are many states where marriage between blacks and whites is not made unlawful but where practically it is made tremendously unlawful by the force of public opinion [mores]. Take the case of debts of honor, so called, debts of gambling; they are paid far more universally than ordinary commercial debts, even by the same people; but there is no law enforcing them--there is no sanction for the collection of gambling debts. And take any custom that grows up. We know how strong our customs in college are. Take the mere custom of a club table; no one dares or ventures to supplant the members at that table. That kind of sanction is just as good a law as a law made by statute and imposing five or ten dollars'

penalty or a week's imprisonment. And judges or juries recognize those things as laws, just as much as they do statute laws; when all other laws are lacking, our courts will ask what is the "custom of the trade."

These be laws, and are often better enforced than the statute law; the rules of the New York Stock Exchange are better enforced than the laws of the state legislature. Now all our early Anglo-Saxon law was law of that kind. For the law was but universal custom, and that custom had no sanction; but for breach of the custom anybody could make personal attack, or combine with his friends to make attack, on the person who committed the breach, and then, when the matter was taken up by the members of both tribes, and finally by the witenagemot as a judicial court, the question was, what the law was. That was the working of the old Anglo-Saxon law, and it was a great many centuries before the notion of law changed from that in their minds. And this "unwritten law"

perdures in the minds of many of the people today.

3. Religion and Social Control[275]

As a social fact religion is, indeed, not something apart from mores or social standards; it is these as regarded as "sacred." Strictly speaking there is no such thing as an unethical religion. We judge some religions as unethical because the mores of which they approve are not our mores, that is, the standards of higher civilization. All religions are ethical, however, in the sense that without exception they support customary morality, and they do this necessarily because the values which the religious att.i.tude of mind universalizes and makes absolute are social values. Social obligations thus early become religious obligations. In this way religion becomes the chief means of conserving customs and habits which have been found to be safe by society or which are believed to conduce to social welfare.

As the guardian of the mores, religion develops prohibitions and "taboos" of actions of which the group, or its dominant cla.s.s, disapproves. It may lend itself, therefore, to maintaining a given social order longer than that order is necessary, or even after it has become a stumbling-block to social progress. For the same reason it may be exploited by a dominant cla.s.s in their own interest. It is in this way that religion has often become an impediment to progress and an instrument of cla.s.s oppression. This socially conservative side of religion is so well known and so much emphasized by certain writers that it scarcely needs even to be mentioned. It is the chief source of the abuses of religion, and in the modern world is probably the chief cause of the deep enmity which religion has raised up for itself in a certain cla.s.s of thinkers who see nothing but its negative and conservative side.

There is no necessity, however, for the social control which religion exerts being of a non-progressive kind. The values which religion universalizes and makes absolute may as easily be values which are progressive as those which are static. In a static society which emphasizes prohibitions and the conservation of mere habit or custom, religion will also, of course, emphasize the same things; but in a progressive society religion can as easily attach its sanctions to social ideals and standards beyond the existing order as to those actually realized. Such an idealistic religion will, however, have the disadvantages of appealing mainly to the progressive and idealizing tendencies of human nature rather than to its conservative and reactionary tendencies. Necessarily, also, it will appeal more strongly to those enlightened cla.s.ses in society who are leading in social progress rather than to those who are content with things as they are.

This is doubtless the main reason why progressive religions are exceedingly rare in human history, taking it as a whole, and have appeared only in the later stages of cultural evolution.

Nevertheless, there are good reasons for believing that the inevitable evolution of religion has been in a humanitarian direction, and that there is an intimate connection between social idealism and the higher religions. There are two reasons for this generalization. The social life becomes more complex with each succeeding stage of upward development, and groups have therefore more need of commanding the unfailing devotion of their members if they are to maintain their unity and efficiency as groups. More and more, accordingly, religion in its evolution has come to emphasize the self-effacing devotion of the individual to the group in times of crisis. And as the complexity of social life increases, the crises increase in which the group must ask the unfailing service and devotion of its members. Thus religion in its upward evolution becomes increasingly social, until it finally comes to throw supreme emphasis upon the life of service and of self-sacrifice for the sake of the group; and as the group expands from the clan and the tribe to humanity, religion necessarily becomes less tribal and more humanitarian until the supreme object of the devotion which it inculcates must ultimately be the whole of humanity.

III. INVESTIGATIONS AND PROBLEMS

1. Social Control and Human Nature

Society, so far as it can be distinguished from the individuals that compose it, performs for those individuals the function of a mind. Like mind in the individual man, society is a control organization. Evidence of mind in the animal is the fact that it can make adjustments to new conditions. The evidence that any group of persons const.i.tutes a society is the fact that the group is able to act with some consistency, and as a unit. It follows that the literature on social control, in the widest extension of that term, embraces most that has been written and all that is fundamental on the subject of society. In chapter ii, "Human Nature,"

and the later chapters on "Interaction" and its various forms, "Conflict," "Accommodation," and "a.s.similation," points of view and literature which might properly be included in an adequate study of social control have already been discussed. The present chapter is concerned mainly with ceremonial, public opinion, and law, three of the specific forms in which social control has universally found expression.

Sociology is indebted to Edward Alsworth Ross for a general term broad enough to include all the special forms in which the solidarity of the group manifests itself. It was his brilliant essay on the subject published in 1906 that popularized the term social control. The materials for such a general, summary statement had already been brought together by Sumner and published in 1906 in his _Folkways_. This volume, in spite of its unsystematic character, must still be regarded as the most subtle a.n.a.lysis and suggestive statement about human nature and social relations that has yet been written in English.

A more systematic and thoroughgoing review of the facts and literature, however, is Hobhouse's _Morals in Evolution_. After Hobhouse the next most important writer is Westermarck, whose work, _The Origin and Development of the Moral Ideas_, published in 1906, was a pioneer in this field.

2. Elementary Forms of Social Control

Literature upon elementary forms of social control includes materials upon ceremonies, taboo, myth, prestige, and leadership. These are characterized as elementary because they have arisen spontaneously everywhere out of original nature. The conventionalized form in which we now find them has arisen in the course of their repet.i.tion and transmission from one generation to another and from one culture group to another. The fact that they have been transmitted over long periods of time and wide areas of territory is an indication that they are the natural vehicle for the expression of fundamental human impulses.

It is quite as true of leadership, as it is of myth and prestige, that it springs directly out of an emotional setting. The natural leaders are never elected and leadership is, in general, a matter that cannot be rationally controlled.

The materials upon ceremony, social ritual, and fashion are large in comparison with the attempts at a systematic study of the phenomena.

Herbert Spencer's chapter on "Ceremonial Government," while it interprets social forms from the point of view of the individual rather than of the group, is still the only adequate survey of the materials in this special field.

Ethnology and folklore have acc.u.mulated an enormous amount of information in regard to primitive custom which has yet to be interpreted from the point of view of more recent studies of human nature and social life. The most important collections are Frazer's _Golden Bough_ and his _Totemism and Exogamy_. Crawley's _The Mystic Rose_ is no such monument of scholarship and learning as Frazer's _Golden Bough_, but it is suggestive and interesting.

Prestige and taboo represent fundamental human traits whose importance is by no means confined to the life of primitive man where, almost exclusively hitherto, they have been observed and studied.

The existing literature on leadership, while serving to emphasize the importance of the leader as a factor in social organization and social process, is based on too superficial an a.n.a.lysis to be of permanent scientific value. Adequate methods for the investigation of leadership have not been formulated. In general it is clear, however, that leadership must be studied in connection with the social group in which it arises and that every type of group will have a different type of leader. The prophet, the agitator, and the political boss are types of leaders in regard to whom there already are materials available for study and interpretation. A study of leadership should include, however, in addition to the more general types, like the poet, the priest, the tribal chieftain, and the leader of the gang, consideration of leadership in the more specific areas of social life, the precinct captain, the promoter, the banker, the pillar of the church, the football coach, and the society leader.

3. Public Opinion and Social Control

Public opinion, "the fourth estate" as Burke called it, has been appreciated, but not studied. The old Roman adage, _Vox populi, vox dei_, is a recognition of public opinion as the ultimate seat of authority. Public opinion has been elsewhere identified with the "general will." Rousseau conceived the general will to be best expressed through a plebiscite at which a question was presented without the possibilities of the divisive effects of public discussion. The natural impulses of human nature would make for more uniform and beneficial decisions than the calculated self-interest that would follow discussion and deliberation. English liberals like John Stuart Mill, of the latter half of the nineteenth century, looked upon freedom of discussion and free speech as the breath of life of a free society, and that tradition has come down to us a little shaken by recent experience, but substantially intact.

The development of advertising and of propaganda, particularly during and since the world-war, has aroused a great many misgivings, nevertheless, in regard to the traditional freedom of the press. Walter Lippmann's thoughtful little volume, _Liberty and the News_, has stated the whole problem in a new form and has directed attention to an entirely new field for observation and study.

De Tocqueville, in his study of the early frontier, _Democracy in America_, and James Bryce, in his _American Commonwealth_, have contributed a good deal of shrewd observation to our knowledge of the role of political opinion in the United States. The important attempts in English to define public opinion as a social phenomenon and study it objectively are A. V. Dicey's _Law and Opinion in England in the Nineteenth Century_ and A. Lawrence Lowell's _Public Opinion and Popular Government_. Although Dicey's investigation is confined to England and to the nineteenth century, his a.n.a.lysis of the facts throws new light on the nature of public opinion in general. The intimate relation between the press and parliamentary government in England is revealed in an interesting historical monograph by Michael Macdonagh, _The Reporters'

Gallery_.

4. Legal Inst.i.tutions and Law

Public law came into existence in an effort of the community to deal with conflict. In achieving this result, however, courts of law invariably have sought to make their decisions first in accordance with precedent, and second in accordance with common sense. The latter insured that the law would be administered equitably; the former that interpretations of the law would be consistent. Post says:

Jural feelings are princ.i.p.ally feelings of indignation as when an injustice is experienced by an individual, a feeling of fear as when an individual is affected by an inclination to do wrong, a feeling of penitence as when the individual has committed a wrong. With the feeling of indignation is joined a desire for vengeance, with the feeling of penitence a desire of atonement, the former tending towards an act of vengeance and the latter towards an act of expiation. The jural judgments of individuals are not complete judgments; they are based upon an undefined sense of right and wrong. In the consciousness of the individual there exists no standard of right and wrong under which every single circ.u.mstance giving rise to the formation of a jural judgment can be subsumed. A simple instinct impels the individual to declare an action right or wrong.[276]

If these motives are the materials with which the administration of justice has to deal, the legal motive which has invariably controlled the courts is something quite different. The courts in the administration of law have invariably sought, above all else, to achieve consistency. It is an ancient maxim of English law that "it is better that the law should be certain than that the law should be just."[277]

The conception implicit in the law is that the rule laid down in one case must apply in every similar case. In the effort to preserve this consistency in a constantly increasing variety of cases the courts have been driven to the formulation of principles, increasingly general and abstract, to multiply distinctions and subtleties, and to operate with legal fictions. All this effort to make the law a rationally consistent system was itself inconsistent with the conception that law, like religion, had a natural history and was involved, like language, in a process of growth and decay. It is only in recent years that comparative jurisprudence has found its way into the law schools. Although there is a vast literature upon the subject of the history of the law, Maine's _Ancient Law_, published in 1861, is still the cla.s.sic work in this field in English.

More recently there has sprung up a school of "legal ethnology." The purpose of these studies is not to trace the historical development, of the law, but to seek in the forms in use in isolated and primitive societies materials which will reveal, in their more elementary expressions, motives and practices that are common to legal inst.i.tutions of every people. In the Preface to a recent volume of _Select Readings on the Origin and Development of Legal Inst.i.tutions_, the editors venture the statement, in justification of the materials from sociology that these volumes include, that "contrary, perhaps, to legal tradition, the law itself is only a social phenomenon and not to be understood in detachment from human uses, necessities and forces from which it arises." Justice Holmes's characterization of law as "a great anthropological doc.u.ment" seems to support that position.

Law in its origin is related to religion. The first public law was that which enforced the religious taboos, and the ceremonial purifications and expiations were intended to protect the community from the divine punishment for any involuntary disrespect or neglect of the rites due the G.o.ds which were the first crimes to be punished by the community as a whole, and for the reason that failure to punish or expiate them would bring disaster upon the community as a whole.

Maine says that the earliest conceptions of law or a rule of life among the Greeks are contained in the Homeric words _Themis_ and _Themistes_.

When a king decided a dispute by a sentence, the judgment was a.s.sumed to be the result of direct inspiration. The divine agent, suggesting judicial awards to kings or to G.o.ds, the greatest of kings, was _Themis_. The peculiarity of the conception is brought out by the use of the plural.

_Themistes_, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judge. Kings are spoken of as if they had a store of "Themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "Zeus, or the human king on earth," says Mr.

Grote, in his _History of Greece_, "is not a law-maker, but a judge." He is provided with Themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments.[278]

It is only in recent times, with the gradual separation of the function of the church and the state, that legal inst.i.tutions have acquired a character wholly secular. Within the areas of social life that are represented on the one hand by religion and on the other by law are included all the sanctions and the processes by which society maintains its authority and imposes its will upon its individual members.[279]