Handbook of Ethical Theory - George Stuart Fullerton (chrome ebook reader txt) 📗
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Those public habits which it seems to a community it is of especial importance to preserve and enforce come to be embodied in laws. The selection is a matter of more or less deliberate choice, and is an expression of will. The choice is not, normally, an arbitrary one. The laws of a people are, unless accident has intervened, the outcome and expression of its corporate life. For their ultimate authority they rest upon the acquiescence of the social will. Laws contrary to deep-seated and widely accepted custom are not apt to be regarded as of binding force. They are felt to be tyrannous, and are obeyed, if at all, unwillingly, and because of pressure from without.
In a later chapter [Footnote: Chapter XX.] I shall dwell upon the fact that the accidental may play a very significant role in law. In given instances the laws of a community may be, not the outcome of its will in any sense, but something imposed upon it. Such laws cannot but be felt to be oppressive and a restriction of freedom.
Laws, like customs, may cease to have a significance, and they may be modified or allowed to fall into desuetude. There is, however, much conservatism, as all who are familiar with legal usage know. And laws may fail of their purpose. They may aim to diminish crime, and their undiscriminating severity may foster crime. So may the individual select an end, fall into error in his choice of means, and, as a result of experience, resolve to substitute for such means others which are better adapted to carry out his purpose.
70. PUBLIC OPINION.—Public opinion is manifestly a force broader and more vague than established custom, and still broader than law. Public opinion may approve or condemn what no law touches, and it makes its influence felt beyond the sphere of what is customary.
Where customs and laws come to be imperfect expressions of the social will, they may stand condemned by public opinion. In such a case their authority is undermined and violations of them are condoned. Where public opinion is strongly against a law; the law becomes ineffective. The conservatism of law is such that a law may be allowed to stand unchanged, and yet may fail to be carried into effect. Juries may refuse to convict, or the unpalatable infliction of punishment may be avoided by granting to the judge a wide discretion in pronouncing sentence.
The gradual development of a strong public sentiment may lead to the passage of new laws, not based upon previously established customs, but deliberately framed with a view to the public weal. Old customs may be modified and new customs may be introduced. That the recommendations of public opinion extend beyond the sphere of the customary is manifest. It is not the custom of most men to leave any large part of their estate to public charity. Except in the case of the very rich, the failure to do so is not, as a rule, expressly condemned. Yet such bequests are approved, the testators are praised, and the attitude of public opinion has no small influence upon the conduct of individuals. Again, extreme self-sacrifice is not customary; it is exceptional; and yet shining examples of unselfishness excite a warm sympathy. The expression of this sympathy is not without its influence.
Public opinion is more palpably an expression of the actual social will than are custom and law. We have seen that the last two may represent, in given instances, rather the inherited will of the past than the living will of the present. But when we call public opinion an expression of the social will we cannot mean that it necessarily reflects the sentiment of all the members of a given community.
In primitive communities custom may be a public habit which embraces all, or nearly all, individuals. Public opinion may scarcely have a separate existence. In communities more developed, some individuals may disapprove and refuse to follow many customs which are characteristic of the society to which they belong. Laws are not approved by all, and, in progressive states, there is usually some agitation which has as its object the repeal of old laws or the passage of new ones. In communities where there is independence of thought, public opinion is usually divided.
Furthermore, the communities to which civilized men belong are not homogeneous aggregations of units. There is the public opinion which obtains within single groups within the state. The adherents of a religious sect may have notions peculiar to themselves of the conduct proper to the individual, and such notions may extend far beyond what is actually prescribed by the tenets of the sect. The several trades and professions, the social classes, neighborhoods, even lesser voluntary associations of men, such as clubs, may be pervaded by a public sentiment which varies with each group. When we speak of public opinion generally we have in mind something broader, a resultant. But the public sentiment of the lesser groups cannot be ignored. The individual feels himself especially influenced by the opinions of those most nearly associated with him.
Under the head of public opinion it is convenient to speak of the opinions of moral teachers who have influenced the race. Such a thinker may enunciate truths far in advance of the opinions of his fellows. His teachings are not, hence, fairly representative of the social will as it reveals itself in his time. But the sentiments of the more enlightened never are completely in accord with those of the mass of their fellows. They are not mere aberrations from the social will; they are its forerunners. The moralist and the religious teacher initiate new choices, which may become the choices of large bodies of men. From them proceed influences which have their issue in new expressions of the social will, characterizing whole societies, and giving birth to new customs, new laws, and a new form of public opinion. One can scarcely imagine what China would be without her Confucius; or the Arabic world, with Mahomet abstracted.
71. THE COMMUNITY.—It is difficult to state with absolute exactness what constitutes a community.
We may define it as a group of human beings associated in a common life, depending upon and cooperating with each other. This definition will apply, to be sure, to lesser groups within a tribe or state; and even to a collection of tribes or states in so far as such enter into alliances and cooperate to their mutual advantage. As, however, the bond of union is, in the former case, subordinate to the higher authority of a larger group (for the family is subject to the tribe or state); and as, in the latter case, the bond of union is a relatively loose one, and evidently subordinate to that which binds the citizens of individual states, the community proper may be regarded as that group which is characterized by a relatively great degree of inner coherence and by relative external independence.
The type of such communities is, among the more primitive peoples, the tribe, and among the more developed, the state. The authority of such groups over their own members is, theoretically, paramount, although it may be suspended or abolished by the exertion of force from without.
Such a community may be said to be inspired by a social will expressed in its customs, its laws and the public opinion prevalent in it. Its members may be said to be sharers in the social will of the community. Their participation in it is marked by their being endowed with rights and charged with duties.
It has not been characteristic of communities generally that all who find their place in them should be like sharers in the social will. The distinction has been made between the citizen, who enjoys the fullest rights and may, perhaps, directly take part in the government of the state, and those who, while in the state, are not of it, as they do not enjoy citizenship. Where slavery, in any of its forms, has prevailed, the distinction between those who are significant factors in determining the social will, and those who have not this prerogative, has been very marked. Social classes have often enjoyed, even before the law, privileges of great moment. Women have, as a rule, not been treated as citizens, and have been refused a share in the government of the community. Children are cared for and are protected, but political rights are denied them. Their status before the law is a peculiar one. The mentally defective, both in primitive communities and in developed ones, stand in a relation to the community peculiar to themselves. They are not excluded from it; they are accorded rights; but they are assigned in the community a place of their own. Wherever we look, we find inequality. The sharers in the social will do not share equally, nor do they share in the same way. This is true of communities of every description, but the differences are more marked in some than in others.
72. THE COMMUNITY AND THE DEAD.—It is not merely of the living human beings which compose a community that the social will takes cognizance. Other wills are made participants in the body of rights and duties peculiar to the community.
In many communities the dead are still counted among its members. They are conceived as affecting its welfare, and as demanding services from the living. Duties towards the dead are a well-recognized division of the sum of a man’s obligations in communities the most diverse in their character. In some, they occupy a very prominent place; in no community are they wholly overlooked. A striking illustration of the recognition by the social will of the rights of the dead is to be found in the whole modern law of testamentary succession. The will expressed by a man while he is alive is given effect as though he were still in the flesh and insisted upon the fulfillment of his desire. It appears to work as a permanent factor in the community life, making its influence felt for generations. Witness its influence in charitable foundations, in the law of entail, and the like.
73. THE COMMUNITY AND THE SUPERNATURAL.—Nor is it merely in recognizing the wills of the dead that the social will extends its sphere beyond the community of living human beings. To primitive man, and to man far from primitive, his social environment has not seemed to be limited to the living and the dead who have, or who have had, an undeniable and unequivocal place in the community.
The part played in the life of man by supernatural beings of various orders has been a most significant one. Demons and gods, spirits of a lower or of a higher order, have occupied his mind and have influenced his actions. Such beings have been conceived to be, sometimes, malevolent and needing to be placated, sometimes, benevolent and fit objects of gratitude. Their wills man has regarded as forces to be taken into account, a something to which the individual and the community must adjust themselves.
Man’s relation, or supposed relation, to such beings has been a source of classes of duties upon which great stress has been laid. The influence of this admission of supernatural beings into the circle of those directly concerned in the community life has found its expression in the organization of the state, in custom, in law, in public opinion. We know little of a
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