CHAPTER VII

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. 184_sq._--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.