登陆注册
15752600000003

第3章

However strongly we, with our modern associations, may be inclined to lay down a priori that the notion of a Custom must precede that of a judicial sentence, and that a judgment must affirm a Custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which I have placed them. The Homeric word for a custom in the embryo is sometimes "Themis" in the singular-more often "Dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." Nomos, a Law, so great and famous a term in the political vocabulary of the later Greek society, does not occur in Homer.

This notion of a divine agency, suggesting the Themistes, and itself impersonated in Themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. The conception of the Deity dictating an entire code or body of law, as in the case of the Hindoo laws of Menu, seems to belong to a range of ideas more recent and more advanced.

"Themis" and "Themistes" are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and supporting every relation of life, every social institution. In early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. A supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the State, the Race, and the Family. Men, grouped together in the different relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect.

Everybody acquainted with ordinary classical literature will remember the sacra gentilicia, which exercised so important an influence on the early Roman law of adoption and of wills. And to this hour the Hindoo Customary Law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occur in the continuity of the family.

Before we quit this stage of jurisprudence, a caution may be usefully given to the English student. Bentham, in his Fragment on Government, and Austin, in his Province of Jurisprudence Determined, resolve every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience; and it is further predicated of the command, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. The results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which Bentham determined. It is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the footing of custom; it is rather a habit.

It is, to use a French phrase, "in the air." The only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication.

It is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient Society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of English jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. The "Themistes" have too, it should be remarked, the characteristic which, in the view of Bentham and Austin, distinguishes single or mere commands from laws. A true law enjoins on all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, Causing the term "law" to be applied to mere uniformities, successions, and similitudes. A command prescribes only a single act, and it is to commands, therefore, that "Themistes" are more akin than to laws. They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence.

同类推荐
  • 关尹子

    关尹子

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 佛说圣持世陀罗尼经

    佛说圣持世陀罗尼经

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • English Stories Orient

    English Stories Orient

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • REWARDS AND FAIRIES

    REWARDS AND FAIRIES

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • The Message

    The Message

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
热门推荐
  • 开始了游戏

    开始了游戏

    一场游戏,3年前,丁文沐,苏秋煊,孟筱,董瑛恺因为一封邀请函来到九寨沟险些丧命。4人本以为3年前的那场游戏因他们活了下来而结束,但是并没有,这场不是你死就是我活的游戏从未停止过。
  • 尾戒(上卷)

    尾戒(上卷)

    颠覆你能想象的所有命中注定,如查有一天,你爱的人、爱你的人,都不在了,你会怎样?2009没有煽情,只有心动!【情节虚构,请勿模仿】
  • 最强武帝

    最强武帝

    冷雨自幼修蛮不被祖灵认可,十次被废修为,偶遇灵狐得神秘灵珠,破除诅咒,神魔双修。万千界面,强者如云,且看冷雨口吞太古神兽,枪破诸天大道。混沌三千界,谁与争锋!万界美女,尽拥怀中!
  • 龙珠之沙鲁

    龙珠之沙鲁

    一本普通的七龙珠的同人,大家就随意看看吧!
  • 怀缅

    怀缅

    我看过很多小说特别喜欢的是匆匆那年我不知道我写的好不好但是我知道这里有我的青春有我的怀缅
  • 森蚺在行动

    森蚺在行动

    一支正在演习的中国连队被意外的送到了1938年的抗日战场,他们利用特殊的身份做为掩护,在抗日战场上打击敌人的指挥系统,他们利用各种地形攻击日军,在他们大有收获的同时他们也牺牲了很多队员,但是他们从未停止对日寇的打击,“只要日本人在中国一天,我们就绝不会放过他们,森蚺敢死队誓死抗日。我们怕死但是我们更怕到我们死的时候侵略者还在侵我国土,杀我国民,所以我们不能死!”绿色信号弹划破了黑色的夜空,当日军看到森蚺的标致颜色时,心里不仅仅是害怕了……,日军指挥官都曾告诉部下,如果看到绿色信号弹就把你们的头缩起来,他们的狙击手最爱你们的脑袋。满身鲜血的梅津美治郎对自已说:“不将森蚺敢死队除掉,我梅津枉为帝国军人!”森蚺在行动,你准备好了吗?
  • 洪灵菲作品集(中国现代文学名家作品集)

    洪灵菲作品集(中国现代文学名家作品集)

    文章讲述的是:前线,流亡,在洪流中,路上,归家,气力的出卖者等内容。
  • 驱逐舰与登陆舰传奇

    驱逐舰与登陆舰传奇

    本书是针对青少年的军事知识读物,包括必备的军事知识、军事趣闻、战机战舰知识、导弹火炮知识等多个主题。
  • 情牵帝王心

    情牵帝王心

    一觉醒来,灵魂穿越到丞相府三小姐身上……她本想与世无争,平平淡淡度过一生,却奈何天不由人,被选入后宫,成了后宫三千佳丽中的一人。身为一个现代人,看惯了电视上后宫女人争宠互相毒害的戏码,没想到有一天竟然发生在了自己身上,却还天真的以为自己不受宠,就可以躲过后宫女人的毒害。
  • 极品助理寻爱记

    极品助理寻爱记

    小助理一枚,跟上司吵架,和上司耍赖,敢调戏上司。。。等上司转身索爱时又悄悄溜走。。。果真极品!