The origin and development of the moral ideasWestermarck, Edward
Philosophy
The origin and development of the moral ideas
Westermarck, Edward
Ethics; Ethics -- History; Prehistoric peoples
Custom has proved stronger than law and religion combined. Sir Richard
Burton writes of the Bedouins, "Though the revealed law of the Koran,
being insufficient for the Desert, is openly disregarded, the
immemorial customs of the _Kazi al-Arab_ (the Judge of the Arabs) form
a system stringent in the extreme."[20] So, also, the Turkomans are
ruled, often tyrannised over, by a mighty sovereign, invisible indeed
to themselves, but whose presence is plainly discerned in the word
_deb_--"custom," "usage." Our authority adds:--"It is very remarkable
how little the 'Deb' has suffered in its struggle of eight centuries
with Mahommedanism. Many usages, which are prohibited to the Islamite,
and which the Mollahs make the object of violent attack, exist in all
their ancient originality."[21]
[Footnote 20: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 87.]
[Footnote 21: Vámbéry, _Travels in Central Asia_, p. 310 _sqq._]
The laws themselves, in fact, command obedience more as customs than
as laws. A rule of conduct which, from one point of view, is a law, is
in most cases, from another point of view, a custom; for, as Hegel
remarks, "the valid laws of a nation, when written and collected, do
not cease to be customs."[22] There are instances of laws that were
never published, the knowledge and administration of which belonged to
a privileged class, and which nevertheless were respected and
obeyed.[23] And among ourselves the ordinary citizen stands in no need
of studying the laws under which he lives, custom being generally the
safe guiding star of his conduct. Custom, as Bacon said, is "the
principal magistrate of man's life,"[24] or, as the ancients put it,
"the king of all men."[25]
[Footnote 22: Hegel, _Philosophie des Rechts_, § 211, p. 199.]
[Footnote 23: Rein, _Japan_, p. 314.]
[Footnote 24: Bacon, 'Essay xxxix. Of Custom and Education,' in
_Essays_, p. 372.]
[Footnote 25: Herodotus, iii. 38.]
{165} Many laws were customs before they became laws. Ancient customs
lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion
that Hindu law is based upon customs which existed even prior to and
independent of Brahmanism.[26] The Greek word [Greek: no/mos] means
both custom and law, and this combination of meanings was not owing to
poverty of language, but to the deep-rooted idea of the Greek people
that law is, and ought to be, nothing more and nothing less than the
outcome of national custom.[27] A great part of the Roman law was
founded on the _mores majorum_; in the Institutes of Justinian, it is
expressly said that "long prevailing customs, being sanctioned by the
consent of those who use them, assume the nature of Laws."[28] The
case was similar with the ancient laws of the Teutons and
Irish.[29]
[Footnote 26: Mayne, _op. cit._ p. 4.]
[Footnote 27: Ziegler, _Social Ethics_, p. 30. Schmidt, _Ethik der
alten Griechen_, i. 201.]
[Footnote 28: _Institutiones_, i. 2. 9.]
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