Chapter XII: Social Control (4)

The conception implicit in the law is that the rule laid down in one case must apply in every similar case. In the effort to preserve this consistency in a constantly increasing variety of cases the courts have been driven to the formulation of principles, increasingly general and abstract, to multiply distinctions and subtleties, and to operate with legal fictions. All this effort to make the law a rationally consistent system was itself inconsistent with the conception that law, like religion, had a natural history and was involved, like language, in a process of growth and decay. It is only in recent years that comparative jurisprudence has found its way into the law schools. Although there is a vast literature upon the subject of the history of the law, Maine's _Ancient Law_, published in 1861, is still the classic work in this field in English.

More recently there has sprung up a school of "legal ethnology." The purpose of these studies is not to trace the historical development, of the law, but to seek in the forms in use in isolated and primitive societies materials which will reveal, in their more elementary expressions, motives and practices that are common to legal institutions of every people. In the Preface to a recent volume of _Select Readings on the Origin and Development of Legal Institutions_, the editors venture the statement, in justification of the materials from sociology that these volumes include, that "contrary, perhaps, to legal tradition, the law itself is only a social phenomenon and not to be understood in detachment from human uses, necessities and forces from which it arises." Justice Holmes's characterization of law as "a great anthropological document" seems to support that position.

Law in its origin is related to religion. The first public law was that which enforced the religious taboos, and the ceremonial purifications and expiations were intended to protect the community from the divine punishment for any involuntary disrespect or neglect of the rites due the gods which were the first crimes to be punished by the community as a whole, and for the reason that failure to punish or expiate them would bring disaster upon the community as a whole.

Maine says that the earliest conceptions of law or a rule of life among the Greeks are contained in the Homeric words _Themis_ and _Themistes_.

When a king decided a dispute by a sentence, the judgment was
assumed to be the result of direct inspiration. The divine
agent, suggesting judicial awards to kings or to gods, the
greatest of kings, was _Themis_. The peculiarity of the
conception is brought out by the use of the plural.
_Themistes_, Themises, the plural of Themis, are the awards
themselves, divinely dictated to the judge. Kings are spoken of
as if they had a store of "Themistes" ready to hand for use;
but it must be distinctly understood that they are not laws,
but judgments. "Zeus, or the human king on earth," says Mr.
Grote, in his _History of Greece_, "is not a law-maker, but a
judge." He is provided with Themistes, but, consistently with
the belief in their emanation from above, they cannot be
supposed to be connected by any thread of principle; they are
separate, isolated judgments.[278]

It is only in recent times, with the gradual separation of the function of the church and the state, that legal institutions have acquired a character wholly secular. Within the areas of social life that are represented on the one hand by religion and on the other by law are included all the sanctions and the processes by which society maintains its authority and imposes its will upon its individual members.[279]

SELECTED BIBLIOGRAPHY

I. SOCIAL CONTROL AND HUMAN NATURE

(1) Maine, Henry S. _Dissertations on Early Law and Custom_. New York, 1886.

(2) Kocourek, Albert, and Wigmore, John H., editors. _Evolution of Law_. Select readings on the origin and development of legal institutions. Vol. I, "Sources of Ancient and Primitive Law." Vol. II, "Primitive and Ancient Legal Institutions." Vol. III, "Formative Influences of Legal Development." Boston, 1915.

(3) Sumner, W. G. _Folkways_. A study of the sociological importance of usages, manners, customs, mores, and morals. Boston, 1906.

(4) Letourneau, Ch. _L'Évolution de la morale_. Paris, 1887.

(5) Westermarck, Edward. _The Origin and Development of the Moral Ideas_, 2 vols. London, 1906-8.

(6) Hobhouse, L. T. _Morals in Evolution_. New ed. A study in comparative ethics. New York, 1915.

(7) Durkheim, Émile. _The Elementary Forms of the Religious Life_. A study in religious sociology. Translated from the French by J. W. Swain. London, 1915.

(8) Novicow, J. _Conscience et volonté sociales_. Paris, 1897.

(9) Ross, Edward A. _Social Control_. A survey of the foundations of order. New York, 1906.

(10) Bernard, Luther L. _The Transition to an Objective Standard of Social Control_. Chicago, 1911.

II. ELEMENTARY FORMS OF SOCIAL CONTROL

A. _Leadership_

(1) Woods, Frederick A. _The Influence of Monarchs_. Steps in a new science of history. New York, 1913.

(2) Smith, J. M. P. _The Prophet and His Problems_. New York, 1914.

(3) Walter, F. _Die Propheten in ihrem sozialen Beruf und das Wirtschaftsleben ihrer Zeit_. Ein Beitrag zur Geschichte der Sozialethik. Freiburg-in-Brisgau, 1900.

(4) Vierkandt, A. "Führende Individuen bei den Naturvölkern," _Zeitschrift für Sozialwissenschaft_, XI (1908), 542-53, 623-39.

(5) Dixon, Roland B. "Some Aspects of the American Shaman," _The Journal of American Folk-Lore_, XXI (1908), 1-12.

(6) Kohler, Josef. _Philosophy of Law_. (Albrecht's translation.) "Cultural Importance of Chieftainry." "Philosophy of Law Series," Vol. XII. [Reprinted in the _Evolution of Law_, II, 96-103.]

(7) Fustel de Coulanges. _The Ancient City_, Book III, chap. ix, "The Government of the City. The King," pp. 231-39. Boston, 1896.

(8) Leopold, Lewis. _Prestige_. A psychological study of social estimates. London, 1913.

(9) Clayton, Joseph. _Leaders of the People_. Studies in democratic history. London, 1910.

(10) Brent, Charles H. _Leadership_. New York, 1908.

(11) Rothschild, Alonzo. _Lincoln: Master of Men_. A study in character. Boston, 1906.

(12) Mumford, Eben. _The Origins of Leadership_. Chicago, 1909.

(13) Ely, Richard T. _The World War and Leadership in a Democracy_. New York, 1918.

(14) Terman, L. M. "A Preliminary Study of the Psychology and Pedagogy of Leadership," _Pedagogical Seminary_, XI (1904), 413-51.

(15) Miller, Arthur H. _Leadership_. A study and discussion of the qualities most to be desired in an officer. New York, 1920.

(16) Gowin, Enoch B. _The Executive and His Control of Men_. A study in personal efficiency. New York, 1915.

(17) Cooley, Charles H. "Genius, Fame and the Comparison of Races," _Annals of the American Academy_, IX (1897), 317-58.

(18) Odin, Alfred. _Genèse des grands hommes, gens de lettres français modernes_. Paris, 1895. [See Ward, Lester F., _Applied Sociology_, for a statement in English of Odin's study.]

(19) Kostyleff, N. _Le Mécanisme cérébral de la pensée_. Paris, 1914. [This is a study of the mechanism of the inspiration of poets and writers of romance.]

(20) Chabaneix, Paul. _Physiologie cérébrale_. Le subconscient chez les artistes, les savants, et les écrivains. Bordeaux, 1897-98.

B. _Ceremony, Rites, and Ritual_

(1) Spencer, Herbert. _The Principles of Sociology, Part IV_, "Ceremonial Institutions." Vol. II, pp. 3-225. London, 1893.

(2) Tylor, Edward B. _Primitive Culture_. Researches into the development of mythology, philosophy, religion, language, art, and custom. Chap. xviii, "Rites and Ceremonies," pp. 362-442. New York, 1874.

(3) Frazer, J. G. _Totemism and Exogamy_. A treatise on certain early forms of superstition and society. 4 vols. London, 1910.

(4) Freud, Sigmund. _Totem and Taboo_. Resemblances between the psychic life of savages and neurotics. Authorized translation from the German by A. A. Brill. New York, 1918.

(5) James, E. O. _Primitive Ritual and Belief_. An anthropological essay. With an introduction by R. R. Marett. London, 1917.

(6) Brinton, Daniel G. _The Religious Sentiment: Its Source and Aim_. A contribution to the science and philosophy of religion. Chap. vi, "The Cult, Its Symbols and Rites," pp. 197-227. New York, 1876.

(7) Frazer, J. G. _Golden Bough_. A study in magic and religion. Part VI, "The Scapegoat." 3d ed. London, 1913.

(8) Nassau, R. H. _Fetichism in West Africa_. Forty years' observation of native customs and superstitions. New York, 1907.

(9) Hubert, H., and Mauss, M. "Essai sur la nature et la fonction de sacrifice," _L'Année sociologique_, II (1897-98), 29-138.

(10) Farnell, L. R. _The Higher Aspects of Greek Religion_. New York, 1912.

(11) ----. _The Cults of the Greek States_. 5 vols. Oxford, 1896-1909.

(12) ----. "Religious and Social Aspects of the Cult of Ancestors and Heroes," _Hibbert Journal_, VII (1909), 415-35.

(13) Harrison, Jane E. _Prolegomena to the Study of Greek Religion_. Cambridge, 1903.

(14) De-Marchi, A. _Il Culto privato di Roma antica_. Milano, 1896.

(15) Oldenberg, H. _Die Religion des Veda_. Part III, "Der Cultus," pp. 302-523. Berlin, 1894.

C. _Taboo_

(1) Thomas, N. W. Article on "Taboo" in _Encyclopaedia Britannica_, XXVI, 337-41.

(2) Frazer, J. G. _The Golden Bough_. A study in magic and religion.