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- A Handbook of Ethical Theory - 20/52 -


may endeavor to abolish them.

This means that a new act of the social will may set itself in opposition to the social will already crystallized into custom. In a given instance, and where there are differences of opinion, it may be a nice question whether the new or the old should be regarded as the authoritative expression of the social will.

68. THE ORIGIN AND THE PERSISTENCE OF CUSTOMS.--From the fact that customs are, in general, to be regarded as expressions of the social will, it might be assumed that their purposive character and social utility should be a sufficient explanation of their coming into being. But the matter is not so simple. A man may fall into habits which are no indication of what he regards as useful to him. Such habits have not been formed independently of his will, and yet they may appear to be purposeless, or even detrimental. Who wishes to have the inveterate habit of cracking the joints of his fingers or of biting his finger-nails? What purpose do such habits serve?

Although the social utility of customs, taken generally, is easily apparent, yet there are many customs which seem inexplicable upon such a principle. Why, for example, should the king of a primitive community be prohibited from sleeping lying down? or why should it be forbidden that he gaze upon the sea? [Footnote: _Encyclopedia Britannica_, Eleventh edition, article "Taboo."] The origin of such customs is hidden in obscurity. That their adoption was not without its reason, we may assume. That the reason was a reasonable one cannot be maintained. It seems probable, however, that it at some time seemed reasonable to some one. The persistence of habit, social as well as individual, would account for the perpetuation of the custom long after the occasion which gave rise to it had been forgotten.

69. LAW.--Between custom and law, taken generally, it is by no means easy to draw a sharp distinction, although, in some instances, the distinction, may be clearly marked. In primitive communities, laws reduced to writing, and administered by persons deliberately chosen for that end, may be wholly lacking; and yet who would say that such communities do not live under the reign of law in a broad sense of the term? A course of life is prescribed to the individual; failure to come up to the standard meets with punishment.

Nevertheless, as social life rises in the scale and as communities become developed, custom and law become differentiated. The latter stands out upon the background of the former as something more sharply defined. Penalties and the method of their infliction are more exactly fixed. Not all violations of what is customary are taken up into the legal code as punishable offences, although they meet with that indefinite measure of punishment entailed by social disapproval.

Those public habits which it seems to a community it is of especial importance to preserve and enforce come to be embodied in laws. The selection is a matter of more or less deliberate choice, and is an expression of will. The choice is not, normally, an arbitrary one. The laws of a people are, unless accident has intervened, the outcome and expression of its corporate life. For their ultimate authority they rest upon the acquiescence of the social will. Laws contrary to deep-seated and widely accepted custom are not apt to be regarded as of binding force. They are felt to be tyrannous, and are obeyed, if at all, unwillingly, and because of pressure from without.

In a later chapter [Footnote: Chapter XX.] I shall dwell upon the fact that the accidental may play a very significant role in law. In given instances the laws of a community may be, not the outcome of its will in any sense, but something imposed upon it. Such laws cannot but be felt to be oppressive and a restriction of freedom.

Laws, like customs, may cease to have a significance, and they may be modified or allowed to fall into desuetude. There is, however, much conservatism, as all who are familiar with legal usage know. And laws may fail of their purpose. They may aim to diminish crime, and their undiscriminating severity may foster crime. So may the individual select an end, fall into error in his choice of means, and, as a result of experience, resolve to substitute for such means others which are better adapted to carry out his purpose.

70. PUBLIC OPINION.--Public opinion is manifestly a force broader and more vague than established custom, and still broader than law. Public opinion may approve or condemn what no law touches, and it makes its influence felt beyond the sphere of what is customary.

Where customs and laws come to be imperfect expressions of the social will, they may stand condemned by public opinion. In such a case their authority is undermined and violations of them are condoned. Where public opinion is strongly against a law; the law becomes ineffective. The conservatism of law is such that a law may be allowed to stand unchanged, and yet may fail to be carried into effect. Juries may refuse to convict, or the unpalatable infliction of punishment may be avoided by granting to the judge a wide discretion in pronouncing sentence.

The gradual development of a strong public sentiment may lead to the passage of new laws, not based upon previously established customs, but deliberately framed with a view to the public weal. Old customs may be modified and new customs may be introduced. That the recommendations of public opinion extend beyond the sphere of the customary is manifest. It is not the custom of most men to leave any large part of their estate to public charity. Except in the case of the very rich, the failure to do so is not, as a rule, expressly condemned. Yet such bequests are approved, the testators are praised, and the attitude of public opinion has no small influence upon the conduct of individuals. Again, extreme self- sacrifice is not customary; it is exceptional; and yet shining examples of unselfishness excite a warm sympathy. The expression of this sympathy is not without its influence.

Public opinion is more palpably an expression of the actual social will than are custom and law. We have seen that the last two may represent, in given instances, rather the inherited will of the past than the living will of the present. But when we call public opinion an expression of the social will we cannot mean that it necessarily reflects the sentiment of all the members of a given community.

In primitive communities custom may be a public habit which embraces all, or nearly all, individuals. Public opinion may scarcely have a separate existence. In communities more developed, some individuals may disapprove and refuse to follow many customs which are characteristic of the society to which they belong. Laws are not approved by all, and, in progressive states, there is usually some agitation which has as its object the repeal of old laws or the passage of new ones. In communities where there is independence of thought, public opinion is usually divided.

Furthermore, the communities to which civilized men belong are not homogeneous aggregations of units. There is the public opinion which obtains within single groups within the state. The adherents of a religious sect may have notions peculiar to themselves of the conduct proper to the individual, and such notions may extend far beyond what is actually prescribed by the tenets of the sect. The several trades and professions, the social classes, neighborhoods, even lesser voluntary associations of men, such as clubs, may be pervaded by a public sentiment which varies with each group. When we speak of public opinion generally we have in mind something broader, a resultant. But the public sentiment of the lesser groups cannot be ignored. The individual feels himself especially influenced by the opinions of those most nearly associated with him.

Under the head of public opinion it is convenient to speak of the opinions of moral teachers who have influenced the race. Such a thinker may enunciate truths far in advance of the opinions of his fellows. His teachings are not, hence, fairly representative of the social will as it reveals itself in his time. But the sentiments of the more enlightened never are completely in accord with those of the mass of their fellows. They are not mere aberrations from the social will; they are its forerunners. The moralist and the religious teacher initiate new choices, which may become the choices of large bodies of men. From them proceed influences which have their issue in new expressions of the social will, characterizing whole societies, and giving birth to new customs, new laws, and a new form of public opinion. One can scarcely imagine what China would be without her Confucius; or the Arabic world, with Mahomet abstracted.

CHAPTER XIX

THE SHARERS IN THE SOCIAL WILL

71. THE COMMUNITY.--It is difficult to state with absolute exactness what constitutes a community.

We may define it as a group of human beings associated in a common life, depending upon and cooperating with each other. This definition will apply, to be sure, to lesser groups within a tribe or state; and even to a collection of tribes or states in so far as such enter into alliances and cooperate to their mutual advantage. As, however, the bond of union is, in the former case, subordinate to the higher authority of a larger group (for the family is subject to the tribe or state); and as, in the latter case, the bond of union is a relatively loose one, and evidently subordinate to that which binds the citizens of individual states, the community proper may be regarded as that group which is characterized by a relatively great degree of inner coherence and by relative external independence.

The type of such communities is, among the more primitive peoples, the tribe, and among the more developed, the state. The authority of such groups over their own members is, theoretically, paramount, although it may be suspended or abolished by the exertion of force from without.

Such a community may be said to be inspired by a social will expressed in its customs, its laws and the public opinion prevalent in it. Its members may be said to be sharers in the social will of the community. Their participation in it is marked by their being endowed with rights and charged with duties.

It has not been characteristic of communities generally that all who find their place in them should be like sharers in the social will. The distinction has been made between the citizen, who enjoys the fullest rights and may, perhaps, directly take part in the government of the state, and those who, while _in_ the state, are not _of_ it, as they do not enjoy citizenship. Where slavery, in any of its forms, has prevailed, the distinction between those who are significant factors in determining the social will, and those who have not this prerogative, has been very marked. Social classes have often enjoyed, even before the law, privileges of great moment. Women have, as a rule, not been treated as citizens, and have been refused a share in the government of the community. Children are cared for and are protected, but political rights are denied them. Their status before the law is a peculiar one. The mentally defective, both in primitive communities and in developed ones, stand in a relation to the community peculiar to themselves. They are not excluded from it; they are accorded rights; but they are assigned in the community a place of their own. Wherever we look, we find inequality. The


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