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
  • 宿曜仪轨

    宿曜仪轨

    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。
  • 天玉经

    天玉经

    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。
  • 修设瑜伽集要施食坛仪注

    修设瑜伽集要施食坛仪注

    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。
  • 妇人崩漏门

    妇人崩漏门

    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。
  • 燕台花事录

    燕台花事录

    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
  • 武装之道

    武装之道

    末世来临,为保性命的人类开始了改造身体来适应严苛的环境。由于方法不同,原始人类阵营分成了武装人类、不死王朝以及圣之族三方势力,彼此相互牵制,到达了动态平衡。直到有一天,逃亡天外避难的人类再次回归,终于打破了人类的安宁,故事由此展开。爱者对半第三部作品《武装之道》,让您沉浸在生化机械武装的世界之中。
  • 魔法纵横之冰火战神

    魔法纵横之冰火战神

    一份情感,让他陷入生死边缘。一份执念,让他巧遇机遇。一次机遇,让他再次感受爱恨情仇。机遇过后的他宛如重获新生,他能否为自己打开自己的人生道路呢?书友群:122101448新书求人气求推荐各种求,保证你们不会失望!
  • 混沌天神的眼泪

    混沌天神的眼泪

    别惹老子,否则老子掀了你家地基。你得到龙族的血脉想用它来强化肉体,不好意思那是我兄弟,所以这东西是我的!别给老子叽叽歪歪赶紧开打,我还得回去斗学妹玩呢!只要是我的女人谁也别想动她一根汗毛。就算是老丈人也不行!背叛我的从来都只有一个下场,免费送他见老祖宗!
  • 尸路歌行

    尸路歌行

    不想要了,删了吧,想重新建立一个,客服在哪里
  • 抱歉,爱上了你

    抱歉,爱上了你

    三年前,云沁雪的一通电话封闭了苏宇灏的心;三年后,在命运的安排下他们又重新相逢。见面第一句话,她问他:“三年不见,你还好吗?”他没回答,只是陌生的看着他;一个星期后,他娶了她。却常常把她一人扔在家,自己去找自己的红颜知己。她对他有愧,于是睁一只眼闭一只眼;一年后,东窗事发,他和她在命运的随波中被逐流。他折磨她,辱骂她,处处护着自己的情人,却默默心疼着她:她一声不肯的接受着他的惩罚,并拿真心去换他回来,尽管换来的都是一次次伤心也无悔。到底最后,他们是擦身而过,还是冰释前嫌,双手紧牵到永远?
  • TFBOYS之梦寻千古醉

    TFBOYS之梦寻千古醉

    在那个阴雨润透的盛夏,他是被舞台宠坏的小小少年,她蹲在栀子花开盛开的栅栏边注视着他。那一年,放学后的傍晚,一辆自行车承载了两个人的重量,在这座城市穿行。手指揪住衣衫的下摆,听着自行车的铃铛响了一路,风将两个人的衣服卷起来缠在一起。记忆就此定格。他拼尽全力要留在这部最长的电影里,不过想看一看她的结局。当那个最美的盛夏轻轻离开,当那部最长的电影猝然落幕,他才知道,这世上再没有人像她一样,爱他如命。
  • 殡葬学的那些诡异事

    殡葬学的那些诡异事

    我叫张恒,控尸术家族的继承者,进入某大学殡葬业专业。在这里我遇到了各种各样奇怪的事情等我去揭开谜底!
  • 爱出无悔

    爱出无悔

    沈宵以为自己的一生就是找一个家世普通的,真心喜欢的女孩,一起平凡的生活的言情风格,可是文风转变太快,一把神秘的钥匙,一个会昧下他东西的坑爹空间,三个神奇的盒子,带他走上了神秘的旅途。突然之间,风云变幻,纨绔居然要拯救地球了。沈宵被这个画风吓坏了,他只想当一个有钱有闲的纨绔都不行嘛。由于是新人,小说有不合理的地方请大家指出,我尽力修改。
  • 无上妙道文始真经

    无上妙道文始真经

    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。
  • 人与魔交战的世界

    人与魔交战的世界

    这是一个人与魔并未分清的世界,在这个世界没有魂力与斗气,在这里只有靠命运与努力才能拯救这个世界