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The Law and Civilization:-
To state it in its extremes: Law is a cobweb,2 entangling the weak, the sport of the strong; however, those in the law, most, take the view of the author of our lead quote -- Law is the very substance of civilization.3 Implicit, in Judge Gest's comment about our "long armed and hairy ancestors" is the Hobbsian concept that man, in his natural state, is a vile beast that needs to be restrained by laws. Actually, our western culture, as it has developed, took its cue from quite an opposite notion. While, no doubt, man must be restrained by laws, and, indeed, has been restrained by natural laws since his earliest beginnings: man is not, and could not, have come to be what he is today if he was but a snarling and thoughtless being, who, as a general statement, cannot see beyond his present place and moment in time.

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The Age of Reason:-
The enormous scientific and intellectual advancements made in the 17th century, the Enlightenment, -- the Age of Reason -- brought about in Western Thought, the age of the scientific man. The thinkers of the age were no longer content to accept the cosmos and its contained life as a mystery to be simply accepted. The time had come for man to test his theories which flooded into his mind; to test these theories with his observations and to reset these theories in accordance with his accumulated observations: and, seemingly without end, to continue to retest and to reset.

"... the closed and authoritarian system of the Middle Ages was replaced by the open and relativistic world of modern times. The closed geography of feudal Europe was pried open, first by the Crusades, then by the discovery of new trade routes, and finally by the world-wide explorations of the great navigators. The flat two-dimensional earth became a spheroid, three-dimensional world. The limited and static spatial theory of Ptolemy gave way to the dynamic heliocentric theory of Copernicus, Galileo, and Newton. Time, as well as space, was broadened. The development of chronology, the recovery of ancient monuments, and speculations about the future expanded the temporal scope of men's views. Economically, the closed and largely self-contained feudal estates were replaced by cities and towns, with the mutual interdependence that comes from the specialization of labor, till the whole medieval scheme of production was made over into the "free" system of commerce and industry."4

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Locke:-
Foremost among these new political thinkers was the Englishman, John Locke (1632-1704) who picked up on the beliefs of Bacon: "all knowledge is founded on and ultimately derives itself from sense ..." Locke, while insisting on the natural morality of pre-social man (unlike Hobbes who had espoused the view that man was a vile beast), thought it best for an individual to contract out "into civil society by surrendering personal power to the ruler and magistrates"; this, for Locke, was "a method of securing natural morality more efficiently." Thus, what was stated, was the so-called Social Contract Theory which has been so badly misapplied and overly extended by the political theorists of this century. So, too, it was Locke who wrote, that if the "ruling body offends against natural law; it must be deposed": this was the philosophical stuff which sanctioned the rebellions of both the American colonialists in 1775, and the people of France in 1789. Incidentally, it is the political, legal and constitutional views of Locke which are at the core of all modern western democracies. All have been modelled after the first of them, the United States of America; Locke views having been carefully drafted into its Constitution of 1787.

As I go about giving an answer (irrefragable, I think) to the popular theories that we might legislate laws and thus resolve our great social problems in one stroke, I shall, in other pages, as are listed in the subject index, make extensive reference to the lives and works of those authors to whom I have referred and to numerous other classical thinkers. But, now, I am obliged to hurry along in this, my introductory note to the subject of law.

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Definition of Law:-
Is it not my design, at this place, to show what stands as law; but, rather my aim is to develop ideas on what law is.6 Law is a "rule of conduct imposed by authority. ... The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects." Upon considering this definition (OED), the first question that arises, is: "On whose authority?" Prior to the 18th century it was on the authority of a divinely appointed king; during the 18th and 19th centuries in England it was on the authority of the landed aristocracy;7 in the 20th century it has been the people, in fact, I submit, the politicians who "manage" to get themselves elected8; now, as we enter the 21st century, it's hard to say whose in charge, maybe no one, and maybe, that's the way it ought to be.

In considering the definition of law, we turn, once again to John Locke, 1690: "Law, in its proper Notion, is the Direction of a free and intelligent Agent to his proper Interest."9 "Proper Notion"? "Proper Interest"? What do you suppose Dr. Locke meant by this. My idea, is, that a proper Notion of law is that kind of law which comes from no human authority, other than from the individual person who is bound to follow it; it is the law that each of us carries around in our breast. A law is a rule which each of us, as a free and intelligent agent, will obey, because we fear the punishment that may come in the breaking of such law, and, by as much or more, because we fear the loss of respect from family and acquaintances. The "Proper Notion" of law is that it is found within a person, himself or herself; it is not imposed externally; in such a notion of law, there is absolutely no curtailment of that essential ingredient of life: "freedom." The "Proper Notion" of law is that it is an ideal necessity given in the form of a precept, which we ought to follow.

For a further development of these ideas, it will be necessary for a person to understand that there are two basic kinds of law: one is scientific, or natural law; the other is a rule (or set of rules), apart from a natural law, which society prescribes for itself.

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Natural Law:-
Unlike man made law, which is prescriptive, natural law is descriptive. A person cannot break a natural law: it's unbreakable and that is a characteristic which defines it. It is unnecessary to take a natural rule (natural law) and make it into a man-made law; it is a complete waste of time and of resources to do so. Not to get too far into man-made law, a topic which I treat elsewhere (legislation), but only to help in defining natural law: a man-made law is to be distinguished from natural law in that it can be broken and this is because it is prescriptive law.

"Natural law, natural justice, [is] the only standard by which any controversy whatever, between man and man, can be rightfully settled; being a principle whose protection every man demands for himself, whether he is willing to accord it to others, or not; being also an immutable principle, one that is always and everywhere the same, in all ages and nations; being self-evidently necessary in all times and places; being so entirely impartial and equitable towards all; so indispensable to the peace of mankind everywhere; so vital to the safety and welfare of every human being; being too, so easily learned, so generally known, and so easily maintained by such voluntary associations as all honest men can readily and rightfully form for that purpose --."10 (Lysander Spooner.)

Let me give two examples of scientific law: Boyle's law, the principle, published by Robert Boyle about 1662, that the volume of a given mass of gas (the temperature being constant) varies inversely as the pressure; and Charles's law, the law discovered by Alex. César Charles (1746-1823) that for every degree centigrade of rise in temperature, the volume of a gas increases ... etc. There are many, many scientific laws, only some of which have been discovered. These are laws on which we daily depend and which, for the most part, we do not understand; we follow them; we do not question them.

Natural Law is a species of scientific law; it is a law implanted by nature on the human mind; Natural Law is a set of instinctual rules which we follow though we have no more understanding of them than we have of the scientific laws to which we have referred; and on which we daily depend; and, I shall say again, we regularly follow without the least understanding of them.

As it relates to man, it was Berkeley, who, in 1712, said, "Self-preservation is the very first and fundamental law of nature." Sir Thomas More, 1568, "The lawe of nature wylleth the mother to keepe the childe." Jeremy Bentham gave natural law a wider meaning than it in fact has, when, in 1780, he said, "Instead of the phrase, Law of Nature, you have sometimes Law of Reason."12

There was a time when natural law was profoundly revered, while conventional, legislated law hardly yet existed. It was a time when the common law13 reigned supreme. As a preacher of the day would say: "The Lord endued Man with the Spirit of Understanding, by which he might be a Guide and Law unto himself." So, the principle that there is no need for men on high to lay laws down for the social organization of human kind, is a principle of long standing; and, there is absolutely nothing which has come out of the great social experiments of the 20th century to indicate, to any well-informed person, that this ancient principle need be different; indeed, the results show that the principle of law as we are here dealing with (that there is no need for written laws in respect to social organization) is a principle firmly rooted in immutable law, natural law.

This subject of natural law -- its existence and its extent -- is a subject which fills a considerable number of shelves in any law school library. It should be sufficient, for now, to say, that if we can identify a body of positive principles and precepts which a good citizen cannot deny or ignore, then we have discovered natural law; and, by doing so, begin to understand that there is a way to deal with the great social problems at hand without turning to intrusive man-made law.

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Hobbes:-
We need laws, so said Alexander Hamilton in 1788, because "the passions of men will not conform to the dictates of reason and justice without restraint." This of course expresses the Hobbesian view of human nature which we but only touched upon, when Judge Gest was quoted at the first of this essay; viz., considering the propensities of our "long armed and hairy ancestors," laws are needed. It is well, even in this, an introduction to the subject of the law, to fix firmly upon the thoughts of Thomas Hobbes if one is to consider if there is a need for man-made laws; and, if so, to what extent.

Thomas Hobbes (1588-1679), an Englishman, wrote a book in 1651, Leviathan. Hobbes' book has been described as the "greatest, perhaps the sole, masterpiece of political philosophy in the English language" it is a treatise on the origin and ends of government. It was Hobbes' view that while man's nature does not require a governing state, independent of his own, a better life might well be assured through the existence of an outside governing state; it was unnatural14 for man to put himself under the control of others, to have a government, but that it was rational to do so. Both Hobbes and Locke ended up in the same place, viz., a government and system of law is best; but, where Hobbes and Locke differed -- and it is important to understand this -- is in the reasons why man ought to put himself under external government. For Locke, it was just that man would be better off under government; but in coming to this conclusion Locke did not cast man as a vile beast to be reined in: Hobbes, on the other hand, was of the view that if man were not brought under a system of government and laws, then man would proceed to lead his life in the midst of others all being singularly driven by an egotistical psychology; and, thus, life for most would be "nasty, brutish and short, a constant war of every man with every man." Rational, enlightened self-interest, so the Hobbesian theory goes, makes men want to escape such a predicament by the establishment of a contract in which they surrender power to an absolute sovereign, whose commands are the law; freedom being relegated to the spheres not covered by the sovereign's commands. This arrangement is binding only so long as the sovereign has power to enforce it. To put this theory in a modern context, this arrangement, if it is to work, will work whether sovereignty is vested in a person, or an assembly of persons. It is, to be clear, the Hobbesian view that "the first principle of human behavior was egoism, or self-interest, and it was this egoism, that was the root of all social conflict." (Benet's.)

The primitive individualism as described by Thomas Hobbes is a myth. The savage was not, and could not have been, solitary; his instinct was and is collectivist.15 The rules of human conduct gradually evolved, particularly the rules governing the possession and exchange of property, viz., contract law. These rules were handed down by tradition, teaching and imitation, and consisted largely of prohibitions, that is to say law evolved to be restrictive in nature.

The human species, as like every life form, indeed, like the cosmos in which life exists, evolved through a massive period of time. Darwinian theory, now the accepted theory as to our origins, to be fair to Hobbes, is a theory of modern times. In spite of the images, over the thousands and thousands of years just preceding civilization, the cave man could not have been much different than any man we might observe as exists on earth today; certainly it cannot be expected that the observations that one might make of a "cave man," of say 100,000 years back, could be any more different than the observations that the same person might make of a randomly picked man of the 21st century. (Unfortunately, lacking a time machine, we are unable to put the matter to the test.) Putting aside a divinity theory, -- which, at any rate, must necessarily take us outside of scientific parameters -- if the dark and gloomy Hobbesian view of man is to be accepted, then, what must occur, is an adequate explanation as to how man came to be -- by and large -- the caring, thinking and beauty appreciating creature that indeed he has come to be. Locke accepted that man, while far from being angelic, nonetheless, had a wonderful nature and that a government and laws were desirable so as to extent man's horizons. However, in order not to dampen down the very thing that through the eons formed him -- his freedom of action -- it is necessary to impose but the simplest set of laws which would achieve the objective, "bringing peace to the whole of society." Criminal law of a practical nature is needed to deal (I favour the word punish) with the offensive actors amongst us (including government, but more on that in a moment). What is permissible, in a proper notion of a government and a system of laws, is to allow government, and only government, as an agent of the people, to use force against another, but, even then, only if it is against an offensive person where the offenses have been carefully spelt out before hand (criminal law). In order to achieve this end, "social peace," on strict Lockian theory, it would only be necessary to set up government for its principal goals (and maybe only goals) of the punishment of criminals and the enforcement of the law which people have set for themselves (tort law, contract law; or, more generally, the common law). In setting up the mechanisms of government, the prime consideration is to be the control of its (government) power. Laws beyond that which is needed to achieve the goal of "social peace" are not necessary, and, indeed, are harmful in that they would impede man's progress by infringing that which sustains life: freedom. In the final analysis, according to the Lockian view of society, not much is required to be done by government; society is quite capable of taking care of itself.

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Rule of Law:-
While philosophers will argue its extent, few will take issue with the need for law and that it is to have universal application: I now write of the all important legal notion, The Rule of Law.

The subject of power: what it is and how it is wielded is a subject I treat elsewhere. Enough, for our purposes in the writing of this introductory monograph on the law, to say that power, as Lord Acton pointed out, corrupts and in turn is misused; this is especially so when power is concentrated in the hands of a few, as it is in government. It was a French philosopher, Montesquieu (1689-1755) -- having spent time in England studying its political system, and, in particular, the writings of Locke -- who wrote, in his work, The Spirit of Laws (1748), that it was a necessity, in any proper constitution of a country, to compartmentalize the power of government. A written demonstration of Montesquieuian doctrine, the separation of powers, exists in the American Constitution, the framers of which, before setting quill to parchment, struggled much with the question and understood very well the inherent danger of government power.

The idea behind Montesquieu's doctrine is to prevent a tyrant from taking control by the use of the power that we have intentionally concentrated in the hands of our agents, those who run the government. Such power, so the doctrine goes, must be distributed to three groups of persons: those who make the law, those who enforce the law, and those who oversee the first two groups. Thus we have three branches of government wielding power: legislative, executive and judicial. In their functions, each is to be separated from the others. And, essentially, each group, as are all citizens, are subject to the same law, in the same way: this we have come to know as the Rule of Law.

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Conclusions:-
Thus, we have considered the origins of the law; its nature; its various kinds; and its application. We have seen that law is more than just the expression of the conscious will of a king or of a legislator; indeed, if such expressions run against natural law, against natural justice, then, such expressions may not be law, at all. We have seen that the law which governs society, has, at its very roots, evolved as a result of natural forces arising through the interaction of people. As Cardozo has lectured, "nature had imprinted in us, as one of the very elements of reason ... that law springs from relations of fact which exist between things." Thus, I submit, that all law is traceable to only one: The Law of Cause and Effect. Given certain factors the same motives always produce the same actions; the same events follow from the same causes. It is this single law, that, in the final analysis, comes to our assistance when we are put to the most difficult task of predicting the behavior of our fellow human beings. Each person is obliged to make their own prediction of future events and govern themselves accordingly.

"It is universally acknowledged that there is a great uniformity among the actions of men, in all nations and ages, and that human nature remains still the same, in its principles and operations. The same motives always produce the same actions: the same events follow from the same causes. Ambition, avarice, self-love, vanity, friendship, generosity, public spirit: these passions, mixed in various degrees, and distributed through society, have been, from the beginning of the world, and still are, the source of all the actions and enterprises, which have ever been observed among mankind." (David Hume (1711-76), Human Understanding, "Liberty and Necessity.")

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FOOTNOTES:

^[1] John Marshall Gest, "The Law and Lawyers of Honoré de Balzac," The Lawyers in Literature (Boston: The Boston Book Co., 1913) at pp. 115,200,232.
^[2] "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through." (Swift, 1709.)
^[3] It was Montesquieu, a person with whom we shall deal herein, who said, "The spread of civilization and sweet manners to the barbarians came about as a result of commerce."
^[4] From Frederic R. White's introduction to his work, Famous Utopias of the Renaissance (Chicago: Packard, 1946) at pp. x-xi.
^[5] I mark the words the state could be a rational instrument "in bringing peace" to society. For those unacquainted with the history of the last two hundred years, all the scientific observations are that man is best left, under appropriate criminal law, to govern himself. As Sir Karl Popper did, we might liken "social science" to "midwifery": it is the mother not the midwife who is obliged to go through the untidy and the painful business of delivering her baby. An important additional point that is to be made, by the way, is, that, not only can a state not be run by a controlling mind, but the controlling mechanisms, as the Roman statesman, Cicero, pointed out, cannot even be set by one controlling mind (much less by a committee): a lasting state can only evolve through the passing of several generations, viz., it comes into being only after the passage of a considerable period of time. "Our state, ..." as Cicero wrote fifty years before the birth of Christ, "Our state, on the contrary, is not due to the personal creation of one man, but of very many; it has not been founded during the lifetime of any particular individual, but through a series of centuries and generations. There never was in the world a man so clever as to foresee everything and that even if we could concentrate all brains into the head of one man, it would be impossible for him to provide for everything at one time without having the experience that comes from practice through a long period of history." [As quoted by Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Press, 3rd Ed., 1991.) at p. 88.]
^[6] "My designe being not to shew what is Law here, and there, but what is Law." (Hobbes, Leviathan (1651) ii. xxvi. 137.)
^[7] As Jonathan Swift wrote in 1724, "In all free nations I take the proper definition of law to be, The will of the majority of those who have the property in land."
^[8] It is my view, that politicians, in large part, are demagogues whose sole aim in life, is, to get and keep political power; and, do so, by catering to the squawkers in society who are out to gratify themselves at the expense of the whole. "A plausible, insignificant word, in the mouth of an expert demagogue, is a dangerous and a dreadful weapon." (Robert South, 1634-1716, a stout Royalist.) "... oft the cheated crowd adore The thriving knaves that keep them poor." (Gay: Fables.)
^[9] Two Treatises of Government.
^[10] A Lysander Spooner Reader (San Francisco: Fox & Wilkes, 1992) at p. 17.
^[11] Dr. Johnson.
^[12] The Principles of Morals and Legislation; it was with this work that Jeremy Bentham (1748-1832) made the "scientific attempt to assess the moral content of human action by focusing on its results or consequences."
^[13] Common law, a concept with which I deal, to a fuller extent, elsewhere. The common law is an immeasurable set of laws; or rather, as Bagehot expressed it, "they are declarations of immemorial custom, not precepts of new duties." Common law is what Englishmen have relied upon for hundreds of years, and led them, for a period of time, to be the masters of the world. It still exists in countries which can point to a British heritage such as that of Canada and of the United States; but, the common law, unfortunately, is in tatters on account of men's legislative and meddlesome ways.
^[14] This is unlike the theories of Plato and Aristotle. Plato and Aristotle taught that governments came about because there exists a social instinct in man to gather together under powerful councils, i. e., it was natural for man to put himself under government.
^[15] Man is collectivist: intensively so at the family level; less so at the tribe level; however, hardly at all, at larger levels.