Modern Science and Anarchism/Chapter 7
VII.
THE FUNCTION OF LAW IN SOCIETY.
Spencer is not the only one who fell into these errors. Remaining true to the teaching of Hobbes, the philosophers of the nineteenth century persisted in looking at primitive men as wild beasts living in small isolated families and fighting one another for their food and their womenfolk, till a kindly authority settled in their midst in order to enforce peace. Even a naturalist like Huxley went on repeating the same assertion as Hobbes, and wrote (in 1885) that in the beginning men lived by fighting "one against all," until, thanks to a few superior beings, "the first society was founded." (See his article, "The Struggle for Existence: a Programme.") Thus, even a learned Darwinian like Huxley had no idea that society, far from having been created by man, existed among animals long before his appearance on the earth. Such is the force of an established prejudice.
If we endeavour to trace the history of this prejudice, we soon find that it derived its origin from religion and churches. The secret societies of wizards, rain-makers (shamans—half sorcerers and half priests), later on, the Assyrian and Egyptian priests, and still later on, the Christian priests, always endeavoured to persuade man that "the world is steeped in sin"; that only the kindly intervention of the shaman, the wizard, the saint, and the priest hinders the powers of evil from taking possession of man; that they alone can induce an angry divinity not to crush man by sin and then punish him for his ill deeds.
Primitive Christianity vainly endeavoured to weaken this prejudice as regards priests; but the Christian Church, taking a stand on the words of the Gospels concerning "eternal fire," only strengthened it. The idea itself of God the Son coming to die on earth, in order to redeem the sins of humanity, confirmed that way of thinking. And this is just what permitted the "Holy Inquisition" to subject their victims to the most atrocious tortures and to grill them on a slow fire: thus they were offered a chance of repentance and salvation from eternal suffering. Moreover, it was not only the Roman Catholic Church which acted in this way: all Christian Churches, faithful to the same principle, vied with one another in the invention of new sufferings in order to correct those stuck fast in "vice." Even now, nine people out of ten believe still that natural occurrences, such as droughts, earthquakes, and contagious diseases, are sent from on high by some kind of divinity to bring back sinning humanity to the right path.
At the same time, the State in its schools and universities maintained, and continues to maintain, the same faith in the natural perversity of man. Its teachers and professors everywhere teach the necessity of having a power above man, and of implanting a moral clement in society by means of punishments, inflicted for violation of "moral law," which by some cunning they identify with written law. To convince men that this authority is necessary is a question of life and death for the State; because, if men began to doubt the necessity of strengthening moral principles by the strong hand of authority, they would soon lose their faith in the high mission of their rulers.
In this manner all our religious, historical, juridical, and social education is imbued with the idea that human beings, if left to themselves, would revert to savagery; that without authority men would eat one another; for nothing, they say, can be expected of the "multitude" but brutishness and the warring of each against all. Men would perish if above them soared not the elect: the priest and the judge, with their two helpmates—the policeman and the hangman. These saviours prevent, we are told, the battle of all against all; they inculcate respect of law, they teach discipline, and lead men with a high hand, till nobler conceptions shall have developed in their "hardened hearts," so that the whip, the prison, and the scaffold may be less necessary than they are to-day.
We laugh at one of those kings who, having been driven away in 1848, said on leaving: "My poor subjects! without me they will perish!" We mock at the English tradesman who is persuaded that his compatriots descend from the lost tribe of Israel, and therefore it is their destiny to impose good government on "inferior races."
But do we not find in all nations this same exaggerated self-appreciation amongst most of those who have learned something?
And yet a scientific study of the development of societies and institutions brings us to quite different views. It proves that usages and customs created by mankind for the sake of mutual aid, mutual defence, and peace in general, were precisely elaborated by the "nameless multitude." And it was these customs that enabled man to survive in his struggle for existence in the midst of extremely hard natural conditions. Science demonstrates to us that the so-called leaders, heroes, and legislators of humanity have added nothing to history beyond what had already been worked out by the Customary Law. The best of them have only put into words and sanctioned the institutions that already existed by habit and custom; while the great number of these would-be benefactors only strove to destroy the unwritten customary law whenever it hindered the establishment of their personal authority, or else they remodelled the popular institutions to their own advantage and to that of their caste.
As long ago as those remote ages which are lost in the dark night of the Glacial period, men lived in societies. And in these societies a whole series of institutions were worked out and rigidly observed, in order to make possible the life in common. And later on, through the whole course of human evolution, the same creative power of the nameless multitude always worked out new forms of social life, of mutual aid, of guarantees of peace, as soon as new conditions arose.
On the other hand, modern science clearly demonstrates that law, whatever its origin—whether represented as derived from a divinity or from the wisdom of a lawgiver—has never done more than to widen the sphere of application, to fix, or rather to crystallise in a permanent form, such customs as already were in existence. All the codes of antiquity were nothing else but collections of customs and habits, put in writing in order to preserve them for the coming generations. But in doing so, the lawmakers always added to these customs some new rules—rules of inequality and servile submission of the masses, in the interest of the armed rich and the warlike minorities.
"Thou shalt not kill," the law of Moses said; "thou shalt not steal, thou shalt not bear false witness." But to these excellent moral rules, generally recognised at that time, it added: "Thou shalt not covet thy neighbour's wife, nor his slave, nor his ass," by which for a long time it legalised slavery, and put woman on a level with slaves and beasts of burden.
"Love your neighbour," said Christianity later on; but it hastened to add by the mouth of the Apostle Paul: "Slaves obey your masters," and "No authority but from God's will"—thus legitimising and deifying the division between masters and slaves, and perpetuating the authority u£ the scoundrels who ruled in Rome at that time.
Even the Gospels, while teaching the sublime idea of no revenge for offences, which is the essence of Christianity, speak all the while of a God of Vengeance, and by this means teach vengeance.
At a still later epoch, we find the same again in the codes of the so-called barbarians: the Gauls, the Longobards, the Alemanni, the Saxons, the Slavonians, after the fall of the Roman Empire. These codes legalised a custom, excellent no doubt, which began to spread at that time: that of paying compensation for wounds and murders, instead of practising the previously very general law of retaliation, which said: "Eye for eye, tooth for tooth, blow for blow, and life for life." By so doing, the barbarian codes certainly represented an improvement on the law of blood-revenge, which had been the code of tribe life; but at the same time they also established the division of free men into classes—a distinction which was hardly perceptible yet at the time when law came in to enforce it, but was reinforced by it.
So much compensation—it was said now in the Barbarian codes—has to be paid for a slave (to the master of the slave); so much, much more, for a freeman; and so much, very much more, for a chieftain. Tn this last case the compensation was so high that it meant lifelong slavery for the murderer. Now, the primary idea of these distinctions, established by custom, was no doubt that the family of a chieftain, killed in a brawl, lost by his death far more than the family of an ordinary freeman who would have been killed in the same circumstance; consequently, the first had a right to a higher compensation than the second. But in legalising this custom, the code established a division of men into classes, and so firmly established it that up till now we have not been able to get rid of it.
And the same obtains in all legislation, even in that of our own times—the injustice and oppression that were practised at a particular period being handed down by law to the later periods. The tyranny of the Persian Empire was thus transmitted to Greece, that of Macedonia to Rome; and the oppression and cruelty of the Roman Empire and the Eastern autocracies and theocracies were transmitted to the young barbaric States when they began to be formed, and even to the Christian Church. By means of Law the past fettered the future.
All the guarantees that are necessary to the life of society, all the forms of social life elaborated within the clans and tribes, the village communities, and later on in the mediaeval cities; all forms of relations between different tribes and clans, and between the city-republics of the mediaeval age, which became later on the first elements of International Law; all forms of mutual support and of the defence of peace, including tribunals and juries, were elaborated by the creative genius of the nameless multitude; while all laws, from the most ancient ones till those of our own times, have always been composed of two very different elements. One of them strengthened (and fixed) certain habits and customs, already recognised as useful; while the other element of all laws was an addition to these customs—very often a mere malicious wording of an existing custom—the aim of which was to implant or strengthen the nascent authority of the kinglet, the nobleman, the soldier and the priest, to consolidate and sanction their power and their authority.
These are the conclusions to which we are led by the scientific study of the development of societies, a study that has been carried on during the last twenty or thirty years by a great number of conscientious scientists. It is true that men of science do not themselves dare to draw conclusions as heretical as those mentioned above; but the thoughtful reader of necessity comes to these conclusions after reading their works.