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
The moral ideas of a people are less extensively represented in its
laws than in its customs. This is a corollary of the fact that there
are always a great number of customs which never become laws.
Moreover, whilst law, like custom, directly expresses only what is
obligatory, it hardly ever deals with merit, even indirectly. The
Chinese have a method of rewarding and commemorating meritorious and
virtuous subjects by erecting gates in their honour, and conferring
upon them marks of public distinction;[35] {167} and the Japanese and
Coreans award prizes in the form of money or silver cups or monumental
columns to signal exemplars of filial piety, arguing that, if the law
punishes crime, it ought also to reward virtue.[36] In Europe we have
titles and honours, pensions for distinguished service, and the like;
but the distribution of them is not regulated by law, and has often
little to do with morality.
[Footnote 35: de Groot, _Religious System of China_ (vol. ii. book) i.
769, 789 _sq._]
[Footnote 36: Griffis, _Corea_, p. 236.]
Law, like custom, only deals with overt acts, or omissions, and cares
nothing for the mental side of conduct, unless the law be
transgressed. Yet, as will be seen subsequently, though this
constitutes an essential difference between law and the enlightened
moral consciousness, it throws considerable light on the moral
judgments of the unreflecting mind.
Being a general, and at the same time a strictly defined, rule of
conduct, a law can even less than a custom make special provision for
every case so as to satisfy the demand of justice. This disadvantage,
however, was hardly felt in early periods of legislation, when little
account was taken of what was behind the overt act; and at later
stages of development, the difficulty was overcome by leaving greater
discretion to the judge. The history of legal punishments in England,
for instance, shows a change from a system which, except in cases of
misdemeanour, left no discretion at all to judges, to a system under
which unlimited discretion is left to them in all cases except those
which are still liable to capital punishment--practically, high
treason and murder.[37] The study of law, then, must for our purpose
be supplemented by the study of judicial practice.
[Footnote 37: Stephen, _History of the Criminal Law of England_, ii. 87.]
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