Regarded, however, in the purely external way which a study of its
mere structure involves, society appears as a machine--that is to say,
appears as the work of intelligence indeed, but not as itself instinct
with intelligence. In what follows we shall set the social machine
moving. We shall then have a better chance of obtaining an inner view
of the driving power. We shall find that we have to abandon the notion
that society is a machine. It is more, even, than an organism. It is
a communion of souls--souls that, as so many independent, yet
interdependent, manifestations of the life-force, are pressing
forward in the search for individuality and freedom.
CHAPTER VII
LAW
The general plan of this little book being to start from the influences
that determine man's destiny in a physical, external, necessary sort
of way, and to work up gradually to the spiritual, internal, voluntary
factors in human nature--that strange "compound of clay and flame"--it
seems advisable to consider law before religion, and religion before
morality, whether in its collective or individual aspect, for the
following reason. There is more sheer constraint to be discerned in
law than in religion, whilst religion, in the historical sense which
identifies it with organized cult, is more coercive in its mode of
regulating life than the moral reason, which compels by force of
persuasion.
To one who lives under civilized conditions the phrase "the strong
arm of the law" inevitably suggests the policeman. Apart from policemen,
magistrates, and the soldiers who in the last resort must be called
out to enforce the decrees of the community, it might appear that law
could not exist. And certainly it is hard to admit that what is known
as mob-law is any law at all. For historical purposes, however, we
must be prepared to use the expression "law" rather widely. We must
be ready to say that there is law wherever there is punishment on the
part of a human society, whether acting in the mass, or through its
representatives. Punishment means the infliction of pain on one who
is judged to have broken a social rule. Conversely, then, a law is
any social rule to the infringement of which punishment is by usage
attached. So long as it is recognized that a man breaks a social rule
at the risk of pain, and that it is the business of everybody, or of
somebody armed with the common authority, to make that risk a reality
for the offender, there is law within the meaning of the term as it
exists for anthropology.
Punishment, however, is by its very nature an exceptional measure.
It is only because the majority are content to follow a social rule,
that law and punishment are possible at all. If, again, every one
habitually obeys the social rules, law ceases to exist, because it
is unnecessary. Now, one reason why it is hard to find any law in
primitive society is because, in a general way of speaking, no one
dreams of breaking the social rules.
Public-domain text, read in full here on John Shaqi.
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