CHAPTER VII. Customs and Laws As Expressions of Moral Ideas

CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS

How we can get an insight into the moral ideas of mankind at large, p. 158.--The close connection between the habitualness and the obligatoriness of custom, p. 159.--Though every public habit is not a custom, involving an obligation, men's standard of morality is not independent of their practice, p. 159 sq.--The study of moral ideas to a large extent a study of customs, p. 160.--But custom never covers the whole field of morality, and the uncovered space grows larger in proportion as the moral consciousness develops, p. 160 sq.--At the lower stages of civilisation custom the sole rule for conduct, p. 161.--Even kings described as autocrats tied by custom, p. 162.--In competition with law custom frequently carries the day, p. 163 sq.--Custom stronger than law and religion combined, p. 164.--The laws themselves command obedience more as customs than as laws, ibid.--Many laws were customs before they became laws, p. 165.--The transformation of customs into laws, p. 165 sq.--Laws as expressions of moral ideas, pp. 166-168.--Punishment and indemnification, p. 168 sq.--Definition of punishment, p. 169 sq.--Savage punishments inflicted upon the culprit by the community at large, pp. 170-173.--By some person or persons invested with judicial authority, pp. 173-175.--The development of judicial organisation out of a previous system of lynch-law, p. 175.--Out of a previous system of private revenge, p. 176.--Public indignation displays itself not only in punishment, but to a certain extent in the custom of revenge, p. 176 sq.--The social origin of the lex talionis, pp. 177-180.--The transition from revenge to punishment, and the establishment of a central judicial and executive authority, pp. 180-183.--The jurisdiction of chiefs, p. 183 sq.--The injured party or the accuser acting as executioner, but not as judge, p. 184sq.--The existence of punishment and judicial organisation among a certain people no exact index to its general state of culture, p. 185.--The supposition that punishment has been intended to act as a deterrent, p. 185 sq.--Among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of the lex talionis, pp. 186-183.--Wanton cruelty not a general characteristic of the public justice of savages, pp. 188-190. Legislators referring to the deterrent effects of punishment, p. 190 sq.--The practice of punishing criminals in public, p. 191 sq.--The punishment actually inflicted on the criminal in many cases much less severe than the punishment with which the law threatens him, p. 192 sq.--The detection of criminals was in earlier times much rarer and more uncertain than it is now, p. 193.--The chief explanation of the great severity of certain {xi} criminal codes lies in their connection with despotism or religion or both, pp. 193-198.--Punishment may also be applied as a means of deterring from crime, p. 198 sq.--But the scope which justice leaves for determent pure and simple is not wide, p. 199.--The criminal law of a community on the whole a faithful exponent of moral sentiments prevalent in that community at large, pp. 199-201.