Page:Philosophical Review Volume 2.djvu/50

36 case of differentiation. We do not find moral and legal institutions existing side by side, and then after a time the conceptions developed in one sphere transferred to the other. Conduct as a whole is ruled by one homogeneous mass of custom. The first beginning of the distinction between moral and criminal law is seen in the division of custom or law into written and unwritten. The written law, being the expressed will of the king or state enforced by penalties, corresponds to our notion of law in the jural sense; while the unwritten law, which depended for its binding force on habit, public opinion, religious belief, and conscience, answers in a general way to our notion of moral law. The unwritten law was regarded as the source of the written. The latter only is changeable; the former is original and abiding. This division of the laws is very common in Greek literature. One of the earliest and most famous examples of this is in Sophocles. Antigone defies the king, who has forbidden her to bury her brother, in these words: Nor did I deem thy edicts strong enough, That thou, a mortal man, should'st over-pass The unwritten laws of God that know not change: They are not of to-day nor yesterday, But live forever; nor can man assign When first they sprang to being."

The reduction of a portion of the ancient customs to writing, and the notion thus introduced of a written law in contrast with the unwritten law, must have been one of the first steps towards the development of the concept of positive law. But even the written law differs essentially from our modern notion of enacted law. It was not looked upon as the recorded will of an established legislative authority, but rather as a precipitate in writing of ancestral customs. Plato and Aristotle regarded the distinction between law and custom as quite unessential.

Another influence in developing the notion of positive law was the contrast which the Sophists, and later the Cynics, made between law and nature ( and ). They declared law a tyrant that compels men to act contrary to nature; all statutes