Rules of human conduct are most varied in their origins and degrees of sanctity. The *laws of etiquette* and °fashion* need not be observed by anybody who has no fear of being laughed at for his oddity or of being shunned for his boorishness; yet few laws are more generally and more willingly obeyed. °No body,* as Locke remarks, °escapes the punish ment of their censure and dislike who offends against the fashion and opinion of the com pany he keeps.* He would be a brave man who should defy a college class custom by supplanting the members at a club table, and the rules of the Stock Exchange are bet ter enforced than some statutes. °laws of honor* have points of exceeding delicacy and °conduct unbecoming a gentleman* could be such as neither ordinary morality nor com mon Custom would condemn. Though not en forceable by law, °debts of honor* are more scrupulously paid than commercial obligations. The rule of the °code of honor,* that duels may be fought only among equals, has an in teresting parallel in early English criminal procedure, which allowed trial by battle on an appeal for assault and wounding only when the wounds were caused by sharp weapons, such as would be borne by gentlemen. An in jury done with a cudgel, and, presumably, in flicted by a churl, gave merely a right of ac tion for damages. The special rules of con duct above mentioned (and many others of like character) are outgrowths of custom and have their sanction in the general opinion of the larger or smaller classes of persons who observe them. But practically the whole body of human law grew up in the same way and had the same point of departure. Customs, indeed, were not merely the sources, they were the law itself. Insofar as the commands of the patriarchal or patrician chiefs of early so cieties were not arbitrary expressions of irre sponsible power, they recorded only rules of conduct that had become habitual in the tribe or clan. Legislative promulgation of these customs was an unessential formality. Their general observance was proof of their exist ence. General observance also proved that they had the sanction of public opinion and that they were matters of common knowledge. No man, as Dr. F. J. Stimson remarks, had to be told what the law was; everybody knew the law just as he knew hunting or fishing. It was the business of nobody in particular to com pel obedience to the law. When a man's en closure was broken into, his house set afire or the lives of his family menaced, he did not run to a judge for advice nor call in the sheriff and his posse. He repelled any attack with his strong right arm and, if an assailant was killed. the resulting lawsuit would not he concerned with assigning a penalty for the violation of a custom by the attacking party; the question would be whether the defender of his home and his customary rights should suffer any pen alty for killing a lawbreaker. In fact, the fear of being killed in the act of violating an other's rights was the only real restraint upon lawbreakers in early times. In our own "Wild West* the rule was °Shoot first, then palaver.* At the stage of social development here spoken of law would be definable as a rule of con duct governing external human actions, sanc tioned by ,public opinion and enforced by indi viduals with the acquiescence of the commu nity. The idea of a law as a rule promulgated and imposed by legislative act, and enforceable only by the public authorities, was a later con ception — meaning later in the stage of social growth, not later in historic time.. Some com munities had laws in the strict sense of the word thousands of years before others.
Early The earliest known sys tem of secular law is contained in the legisla tion (circa 2350 a.c.) of Hammurabi, king of Babylonia, who was a contemporary of Abra ham and of Chedorlaomer the Edomite. This legislation took the form of a code of 282 paragraphs, regularly arranged under heads and subheads, dealing with the rights of per sons, property, the family, contracts, torts and procedure in a very adequate manner. It for bade widows to remarry, without first making provision, under the direction of a judge, for the care of her deceased husband's household and children; it penalized surgeons for injuries done by them in unsuccessful operations, and various other tradesmen for damages caused by their neglect. It demanded retribution, °an eye for an eye, a tooth for a tooth,* in the very words of the Levitical law made over a thousand years later. It was a civil code throughout, containing no religious ordinances; in fact, it transferred the judicial function from the priests to the elders. The idea of the
Single Taxers that land held out of use should be burdened as heavily as land under cultiva tion was anticipated by 4,000 years. The as sumption would be unwarranted that a code, which reflects an advanced social order and rather complex economic conditions, was evolved out of the innermost consciousness of a lawgiver. On the contrary, it is a reasonable supposition that the Babylonian codifiers did little more than restate, in orderly form, an existing body of customs. The transition from unwritten customs to written code marks a stage in the history of almost every juristic system. As human societies developed and hu man relations increased in complexity so did the rules for the government of human conduct ; a few simple customs, with which everybody was familiar, no longer sufficed. Knowledge of the law became the privilege of a class — of a priesthood or a military and political aristoc racy. Various motives impelled these privi leged repositories of legal knowledge to part with a monopoly so advantageous to themselves. The religious oligarchies of Asia embodied their legal learning in codes either for their own guidance, to relieve their memories, or to instruct their disciples. The opportunity inci dentally afforded them to magnify and con solidate their influence was too tempting to be resisted and their monopoly of knowledge en abled them to pass off on the public collections, not of• rules actually observed, but of rules which the priestly order thought proper to be observed. Such a collection is that known as the Laws of Mann. The claims to the highest antiquity made for this Hindu code are not well founded — and, while it is evidently of Brahmanical origin and enshrines many genu ine observances, it does not embody a set of rules that were followed, as a whole, any where in India. It gave general sanction to localized cruel practices, like the suttee, and it hardened the law of status into the abhorrent social institution of caste. Another reason for codification may be found in territorial expan sion through conquest. This probably was the motive for the compilation of the early Baby lonian code. Hammurabi had forced his sov ereignty on Assyria and would, naturally, de sire all his subjects to obey one law. The writing down of the laws of Minos, additional fragments of which have recently been found in the Gortyna inscriptions, was probably sim ilarly influenced—Minoan sovereignty having been extended over practically all the city states of Crete. Lycurgus of Sparta took from these laws the institution of the syssitia — public tables at which all citizens dined in common — and also their general policy, which was to train and control, not only the young but mature citizens as well, in all the habits and relations of life from the cradle to the grave. This policy comported with the pur pose of Lycurgus to create an invincible mili tary machine. The laws of Sparta cultivated the soldierly virtues at the cost of nearly every thing else. A warrior who returned from bat tle without his shield suffered disgrace, inef faceable during life, and scarcely effaced by subsequent death in the performance of a dis tinguished heroic action. A Spartan boy, on the other hand, was encouraged to practice dis simulation and to appropriate whatever he de sired and was disgraced for lying and stealing only when caught at it. Aristotle damns the Minoan law with faint praise and„if its moral level was no higher than that of the Spartan institutions, the high respect accorded to the former by the ancient Greeks seems hardly deserved. But the 180 or more codes of the Greek cities and their colonies in Asia, Africa, Italy and Sicily were not, generally speaking, inspired by the desire to confirm and perpetu ate the power of a ruling class. On the con trary, they were usually the outcome of suc cessful assaults by the plebeian or. popular elements of the community on the aristocratic repositories of legal lore and on the latter's monopoly of knowledge. The rules of con duct were graven on stone or written on scrolls, so that they might be known to all whom they concerned and who were expected to observe them. The communities in which they were promulgated were fairly advanced in their institutional development and familiar with rules of conduct imposed by public au thority and enforced by a public magistracy. This ideal was fully realized by the promulga tion of a written law.