Читать книгу A Manual of Moral Philosophy - Andrew P. Peabody - Страница 14

Table of Contents

Law is the result of the collective experience, in part, of particular communities, in part, of the human race as a whole. It encourages, protects, or at least permits whatever acts or modes of conduct have been found or believed to be fitting, in accordance with the nature of things and the well-being of men, and therefore right; it forbids and punishes such acts or modes of conduct as have been found or believed to be unfitting, opposed to nature and to human well-being, [pg 051] and therefore wrong. It is far from perfect; it is below the standard of the most advanced minds; but it represents the average knowledge or belief of the community to which it belongs. The laws of any particular state cannot rise far above this average; for laws unsustained by general opinion could not be executed, and if existing in the statute-book, they would not have the nature and force of law, and would remain on record simply because they had lapsed out of notice. Nor can they fall far below this average; for no government can sustain itself while its legislation fails to meet the demands of the people.

While law thus expresses the average knowledge of belief, it tends to perpetuate its own moral standard. The notions of right which it embodies form a part of the general education. The specific crimes, vices, and wrongs which the law marks out for punishment are regarded by young persons, from their earliest years, as worthy of the most emphatic censure and condemnation; while those which the law leaves unpunished are looked upon as comparatively slight and venial. Not only so, the degree of detestation in which a community learns to look on specific crimes and offences is not in proportion to their actual heinousness, but to the stress of overt ignominy attached to them by legal penalties. Instances of this effect of law on opinion will be readily called to mind. Thus a common thief loses, and can hardly regain his position in society; while the man who by dishonest [pg 052] bankruptcy commits a hundred thefts in one, can hold his place unchallenged, even in the Christian church, while it is known to every one that he is living—it may be in luxury—on the money he has stolen. The obvious reason is that from time immemorial simple theft has been punished with due, when not with undue, severity, while the comparatively recent crime of fraudulent bankruptcy has as yet been brought very imperfectly within the grasp of penal law. Again, no man of clear moral discernment can doubt that he who consciously and willingly imbrutes himself by intoxication is more blameworthy than he who sells alcoholic liquors without knowing whether they are to be used internally or externally, moderately or immoderately, for medicine or for luxury. Yet because the latter makes himself liable to fine and imprisonment, while the former—unless he belong to the unprivileged classes—has legal protection, instead of the disgraceful punishment he deserves, there is a popular prejudice against the vender of strong drink, and a strange tenderness toward the intemperate consumer. Yet another instance. There are crimes worse than murder. There are modes of moral corruption and ruin, whose victims it were mercy to kill. But while the murderer, if he escape the gallows, is an outcast and an object of universal abhorrence, no social ban rests upon him whose crime has been the death of innocence and purity, yet, if reached at all by law, can be compounded by the payment of money.

[pg 053]

But though law is in many respects an imperfect moral teacher, and its deficiencies are to be regretted, its educational power is strongly felt for good, especially in communities where the administration of justice is strict and impartial. It is of no little worth that a child grows up with some fixed beliefs as to the turpitude of certain forms of evil, especially as the positive enactments of the penal law almost always coincide with the wisest judgments of the best men in the community. Moreover, law is progressive in every civilized community, and in proportion as it approaches the standard of absolute right, it tends to bring the moral beliefs of the people into closer conformity with the same standard. It is, then, a partial and narrow view of law to regard it only or chiefly as the instrument of society for the detection and punishment, or even for the direct prevention of crime. Its far more important function is so to train the greater part of each rising generation, that certain forms and modes of evil-doing shall never enter into their plans or purposes.

The civil, no less than the criminal law is a source of knowledge as to the right. The law does not create, but merely defines the rights appertaining to persons and property. The laws of different nations are, indeed, widely different; but there may be that in their respective histories which makes a difference in the actual rights of citizens, or their civil codes may present different stages of approach toward the right. Thus the laws as to the conveyance and inheritance [pg 054] of property are in some respects unlike in France, England, and the United States, and vary considerably in the several States of our Union; but there generally exist historical reasons for this variation, and it would be found that the ends of justice are best served, and the reasonable expectations of the people best met in each community, by its own methods of procedure. By the law of the land, then, we may learn civil rights and obligations, which we have not the means of ascertaining by our own independent research.

It remains for us to speak of the factitious rights and wrongs, supposed to be created by law. Of these there are many. Thus one mode of transacting a sale or transfer is in itself as good as another; and it might be plausibly maintained that, if the business be fairly and honorably conducted, it matters not whether the legally prescribed forms—sometimes burdensome and costly—be complied with or omitted. The law, it may be said, here creates an obligation for which there is no ground in nature or the fitness of things. This we deny. It is intrinsically fitting that all transactions which are liable to dispute or question should be performed in ways in which they can be attested; and this cannot be effected except by the establishment of uniform methods. He who departs from them performs not only an illegal, but an immoral act; and the legal provisions of the kind under discussion have an educational value in enlarging the knowledge of the individual as to the [pg 055] conditions and means of security, order, and good understanding in human society.

Similar considerations apply to the crimes created by law. Smuggling may serve as an instance. Undoubtedly there are smugglers who would not steal; and their apology is that they are but exercising the rights of ownership upon their own property. But the public must have property, else its community is dissolved; government must be able to avail itself of that property, else its functions are suspended. Men need to be taught that the rights of the state are inseparable from those of individuals, and no less sacred, and the laws that protect the revenue are among the most efficient means of teaching this lesson. Their only defect is that they attach less ignominy to frauds upon the revenue than to other modes of theft, and thus fail to declare the whole truth, that there is no moral difference between him who robs the public and him who robs any one of its individual members.