As a matter of fact, no fundamental difference between Law and Custom
exists; only Law is enforced differently to Custom. It would be going
too far to say: Law has sanctions and Custom has none. The latter has
sanctions too, but they are of a different kind to those of the Law. He
who transgresses Custom will suffer the contempt of his fellow men, and
this may become so penetratingly severe that the most hardened and
shameless rascal must feel it. In an old, loose form of society where
individualism is highly developed, and each one goes his own way, paying
little regard to the others, there an unscrupulous, conscienceless rogue
may sin against Socrates' unwritten law without being penalized. In a
young, closely-knit community, however, in which the feeling of intimate
connexion between the members is lively and vivid, he would be
proscribed, as soon as he was found out, and it would be impossible for
him to remain, say, for example, in a small town of the United States.
Public opinion would make it so hot for him that he would be glad to
escape with a whole skin. But this punishment is exceptional for
transgressions of Custom, whereas it is the rule for those of the Law.
The sanction of the Law is stricter than that of Custom, just as the Law
itself is stricter than is Custom. The Law concerns itself with concrete
cases in which consideration for one's fellow men must be practised,
duties to him fulfilled, and his claims respected. These cases are
defined by Law as clearly as possible, whereas Custom confines itself to
generalities and determines the whole attitude of the individual to his
neighbour. Custom embraces the outer and inner life of man and
supervises his opinions, which are the parents of his deeds, and also
his deeds themselves; Law is only concerned with actions, and refrains
from penetrating to the intimacy of thoughts, unless the latter alter
the essential character of the action, as premeditation in an act of
revenge and temporary or permanent irresponsibility alter the judgment
of offences and crimes. Law is a miserly extract of custom, a meagre
selection from its variety, a concentration and embodiment of its
surging vagueness. It may be compared with crystals, which in their
geometrically accurate forms are crystallized clearly and definitely out
of a liquid, the mother liquor; or with the heavenly bodies which
agglomerate out of surging primal nebulæ. Custom is the primitive thing,
Law is derived from it. It appeals to its descent from Custom, and
founds, at any rate tacitly, its claim to respect on these grounds. A
law which ran counter to Custom, which was confessedly in opposition to
Custom, could never be maintained or prevail, though it bristled with
the menace of the most dreadful punishments.
Public-domain text, read in full here on John Shaqi.
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