Page:Philosophical Review Volume 2.djvu/49



LAW, in the primary sense of the term, is a rule of human action prescribed by authority. The use of the term to express the order of nature is a derived one, which became current only after a considerable historical development. Even this first-mentioned usage is primary only in a relative sense. At the dawn of history we find men ruled by custom rather than law. Clans, tribes, and village communities were ruled by institutions which mythology might explain as established by the gods or by the ancestor of the race; but for the living generation they were a fixed body of rules that could not be infringed without incurring on the individual and on the community the severe displeasure of the gods, and which men regarded as no more subject to change on their part than the paths of the sun, moon, and stars. History opens with this reign of custom. Among primitive peoples we find no distinction made between laws of the state, requirements of religious ritual, and the demands of morality. Conduct in all these respects was governed by an undifferentiated mass of rules, which were enforced upon the individual not only by the severest human penalties, but by the even more terrible fears of superhuman powers. "There is no system of recorded law literally from China to Peru," says Sir Henry Maine, "which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance."

Since in early times legal and moral ideas were thus indiscriminately combined under the general notion of customary law, we must look for the beginning of the history of the concept of law in morality, where the tendency to discriminate between these two fields of conduct first manifests itself. It is not a case of a concept developed in one sphere of life and then carried over by analogy or metaphor to another; it is rather a Rh