VIII: Social Custom1 and Law
In primitive society as well as in antiquity and in the Middle Ages social custom (Sitte) and law can hardly be distinguished. In their conjunction they are the solid order of life in which the individual is embedded; they are the skeleton the permanent constitution for the behaviour of the individuals and their mutual relations. Western society to-day is characterised by an enormous decay of social custom and as a consequence by an enormous increase of laws. The behaviour of the individual nowadays is only to a very small degree ordered by social custom but to an increasing degree his freedom is limited by legal prescriptions. The causal relation between the two facts is obvious: where social custom is strong only a minimum of legal prescription is necessary.
The destruction of social custom in modern times is closely connected with the development of individualism. The individual wants to shape his life as it pleases him or as it seems good to him. He does not want to be controlled by the anonymous power of social custom. He wants to have his liberty and he also wants to decide according to his own conscience. The decay of social custom therefore is ambivalent; it may be a sign of spiritual and moral independence or it may be a sign of arbitrary subjectivism. In both cases it is the product of the emancipation of the individual from collectivity. On the other hand it would be wrong to interpret the prevalence of social custom as spiritual inferiority and a defective sense of responsibility. Even a morally and spiritually mature man who is perfectly willing to take full responsibility for his life can acknowledge the necessity of social custom with regard to the common welfare. He would attribute to it the same function for society as to mechanical habit in individual life. It relieves life of unnecessary decisions and makes it free for decisions where they are really necessary. It would be stupid to deny the necessary function of individual habit. Without a great number of such habits life is impossible. The same the mature man might claim is true of the function of social custom in society. He would add a second argument: to acknowledge the necessity of social custom is to acknowledge one's own limitations. Social custom may express the wisdom of the generations which is not consciously the wisdom of the individual. He would add a third argument: that not all people if any reach a state of complete moral maturity; and therefore people need the support of firm social custom. The necessity of social custom can be denied only by those who postulate that every individual be spiritually and morally awake at every moment or who at least think that the absence of custom is more than compensated by the gain in individual responsibility.
At first sight it might appear that New Testament Christianity which puts the highest obligation of personal responsibility on the individual and which believes in a continual guidance by the Holy Spirit would leave little room if any for social custom. But this is not so. Good customs are acknowledged and recommended; sometimes good custom is appealed to in order to end discussion. On the other hand the apostles warn people against bad customs and demand a complete break with them. Therefore the man who was converted to the Christian faith had to break completely with pagan custom in order to become a member of the Church. By this break a vacuum of social custom was created. But this vacuum was filled by something else by the order of life in the Christian community. This Christian order of life was a new kind of social custom. A body of rules hardly conscious and never formulated powerfully shaped the life of the individual Christian; its origin could hardly be traced and its necessity and rightfulness was never questioned. The importance of such Christian social custom in the early Church can harly be over-estimated. Certainly the great moral teachers of the early Church whose writings we know not only enjoined but also verified and corrected these social habits of the Christian community. The individual Christian however did do or abstained from doing many things differently from the rest of the world for the sole reason that this was the social habit of the Church.
Because social habit is formed unconsciously and by its very essence is beyond people's criticism there is great danger of every good custom degenerating into bad custom or into mere convention. Furthermore social habit sometimes has no other purpose than effectively to separate one social class from another. The Court nobility the upper classes develop special customs and even complete codes of behaviour from the mere instinct of exclusiveness. The function of these customs is to distinguish those who belong to the upper circles and so to prevent others from intruding. In a similar way habits are formed in other sections of society which for other reasons wish to be distinguished and separated from the rest. Where this becomes conscious such custom turns into a sort of private law.
Social habit is a most complex thing: primeval religious customs long forgotten political and military measures obsolete legal institutions prescriptions of long abandoned techniques survive as social habits. “Everybody does it”—without knowing why even if it is apparently senseless. All the same this conservatism of social habit is not merely social inertia but an instinct for the preservative power and necessity of social habit in general. It is an instinct for the necessity of a certain irrational factor of a rule of conduct the meaning of which cannot be thoroughly grasped. That is why the typically enlightened man who acknowledges as truth only what he can himself understand naturally despises and opposes social custom. It seems to him unworthy to subject himself to a rule which he does not thoroughly understand. The age of the Enlightenment therefore was the time when social custom was cleared away just as about the same period the old fortifications and towers of former centuries were cleared away in European cities because they were merely obstacles to modern traffic. Indeed how much old rubbish has been swept away since the Enlightenment! How much easier to survey and how much lighter are our modern cities! How much more rational life has become!
If this parallel between architectural style and way of life holds good the comparison will not be entirely in favour of the modern age. It can hardly be denied that the picture of a modern city is characterised by a complete lack of character and style. Architectural style is the expression of a common mind and feeling. In the age of a great style even the simple workman builds well. The style builds for him. There is a more or less unconscious rule of building directing the individual builder. The same is true of social habit: the age without style is also an age without custom. The individual is isolated left to himself; there is no direction no aim to be unconsciously followed. Everyone has to find his own style of life and this is simply beyond him. The philosophy of the Enlightenment being itself the heir of a great past laid too heavy a burden upon the individual. The 17th and 18th centuries could indulge in an enthusiasm for freedom and emancipation without fearing chaos because there were still the powerful integrating forces of the past resisting chaotic dissolution. But in the 19th century the social structure begins to fall to pieces and social chaos is waiting at the door which is opened in the 20th century; the reaction has already set in in the shape of totalitarian compulsion.
In this present age Western mankind vacillates between complete social dissolution and complete compulsion. Social custom as a uniting and controlling power has been reduced almost to nothing apart from small groups of society. The individual is left to his own conscience and to his own good pleasure. No way of conduct is marked out for him. He has to decide for himself. Modern man has now begun to become disinclined for this super-abundance of personal responsibility; at the same time he is afraid of chaotic dissolution. From extreme individualism he swings over to a collectivist totalitarianism finding it either in the Roman Catholic Church or in the Communist state. Protestantism however having identified itself wrongly with individualism is no longer regarded as a spiritual power providing social cohesion and direction because it was not capable of producing customs which would direct the individual without absolutely binding him. There is the same vacuum as in Protestant education which we discussed in a previous lecture.
The less social custom the more compulsory law. This truth needs no proof in the age of totalitarianism. Man having lost the sense of direction in a time of complete freedom turns to the opposite extreme to that society in which everything is a matter of compulsion. It must be acknowledged however that the tremendous increase of the legal apparatus and the production of laws has other causes as well. Modern economic life has become so intense and complex that increased compulsory regulation became inevitable. The fast-growing world-traffic has made necessary so to say a universal traffic-police to lay down compulsory rules of social life.
This quantitative increase in state regulation however is not the only characteristic feature of recent times. Alongside it a qualitative change of greater importance is taking place by which the totalitarian danger becomes imminent. In earlier times common law was a pre-state element a fixed social relation. English common law is still independent of the state on the one hand and hardly distinguishable from social custom on the other. For the Continental European of our time English common law and the whole legal practice of England is very difficult to understand because on the Continent common law has been displaced by codified law; the only remainder of common law there is what we call Gewohnheitsrecht (custom-law). But neither the term “common law” nor Gewohnheitsrecht tells the whole truth. In the German word Recht there is a reminiscence of the relation between law and justice or righteousness which is lacking in the word “law”. Common law in the English sense can exist only because and so long as there is a close relation between law and morality. On the other hand the expression Gewohnheitsrecht is inadequate because it is not a matter of mere custom but of common moral conviction.
In older times the legal sense or consciousness what we call Rechtsbewusstsein was closely related to justice. Law had not yet the formal technical character which it has now. That is why the jurists of previous centuries could think of positive law as being merely a special form of natural law so that there could be no real clash between the two. While the relation between law and justice or morality was obvious and close the relation between law and state was much less obvious or acknowledged. Certainly the authority of the state was even then necessary to enforce law. But the king was rather the protector than the creator of law. The power of the state stands behind the common law to safeguard it but law itself is in principle independent of the state. The idea that only by the state does a rule become law is entirely foreign to the people of older times as it is still foreign to the English people.
Whatever may be the cause or causes of this change the fact is undeniable that on the Continent law is understood by the jurists as meaning law of the state and that the jurists consider the state to be the only source of law. It is probably the fact of the codification of common law in the early 19th century which has contributed more than anything else to this unfortunate development. In the same degree as law has been exclusively linked up with the state it has lost its connection with social custom and morality. Everything which the state proclaims as a rule is Recht whatever its moral quality may be. And nothing which the state does not proclaim as a rule is Recht however just it may be. The close connection between jus naturale and jus divinum on the one hand and positive law on the other is in that way completely denied and disrupted.
This change has a double consequence. The first is a formalistic conception and development of law. Everything which the state declares to be a rule—all administrative machinery and procedure—is just as much law as those laws which order the conduct of the citizens and upon which rests the distinction between what is permitted and what is forbidden what is lawful and what is unlawful. What in older times was Recht as distinguished from Unrecht “lawful” as distinguished from “unlawful” has now become a subordinate part of an immense body of administrative rules and prescriptions for business transactions. It is no more the content but the form which is decisive. All rules and regulations which the state places upon the statute book are considered as the one body of law; and thus the conception of law is formalised and has almost completely lost its connection with justice and morality.
The second change is of even greater importance. Whatever the state declares as law is Recht even if it is the very opposite of justice and morality. The state is no longer the protector it is now the producer of law. The state is no longer under the law but above it. As there is no law but that which the state gives there is also no law above the state by which the state can be called to account. There are no primary rights preceding the laws of the state no human rights which the state has to acknowledge and which it cannot repeal. The state has become sovereign in a sense which in the Middle Ages was sometimes applied to the monarch: princeps legibus solutus. The state being the only source of law cannot but be itself legibus solutus. The state can declare as law whatever it likes which means that the formalism of the new conception of law includes or leads to state absolutism. This new conception of law then has a marked tendency to totalitarianism. The totalitarian state of our time is the practical consequence of this development of the modern conception of law. What is to be said from the Christian point of view about this whole development of the conception of law?
Every reader of the Bible knows the close relation which exists between law and the divine will. The conception of jus divinum divine law is fundamental in Biblical thought. But if we try to formulate more clearly what this divine law is which so profoundly impresses us particularly in the Old Testament we are confronted with a series of most difficult and confusing questions. The jus divinum transcends all legal relations between men being also the basis of purely moral and religious relations and conduct. In the Pauline concept of dikaiosyne Theou the element of divine mercy and forgiveness is essential and the whole redemptive work of Christ is included. This new “righteousness” is the norm and essence of that relation between men which does not ask for justice but is based on spontaneous love that love which Jesus in the Sermon on the Mount opposes to the attitude dictated by mere justice. For the same reason it is impossible though it has so often been tried to make the Decalogue the basis for legal justice because the Decalogue is interpreted by our Lord to mean nothing else than that free spontaneous love which transcends all requirements of mere justice. And finally the attempt to derive the divine law from the several codes of law in the Old Testament proves to be not very successful because these laws were given to the people of Israel over more than a thousand years in its specific historical situation which is so entirely different from ours.
As a matter of fact the development of law and legal practice in the Western Christian world has on the whole not followed the line of biblicism but has tried to make the jus divinum bear upon the legal reality by the concept of jus naturale or lex naturae; or more exactly by identifying this concept of ancient philosophy and jurisprudence with the Christian idea of jus divinum. During fifteen centuries this jus naturale in its Biblical or Christian interpretation was the foundation of juridical thinking in Europe until in the age of the Enlightenment the Christian interpretation was replaced by a rationalistic one and in the time of romantic historicism and naturalistic positivism the whole idea of a jus naturale was abandoned and jurisprudence and political theory became devoid of any kind of normative principle law becoming a matter of mere political power.
But this unfortunate development resulting in the complete dissolution of the idea of natural law had its origin—partly at least—in this concept itself because from the beginning of its Christian history a double uncertainty or confusion was connected with it. First it had never been made clear either by theologians or by jurists what was the distinction between the Christian and the pagan interpretation of lex naturae. Second it had never become clear how lex naturae as the principle of juridical law was distinguished from Christian love as the principle of personal conduct. While it was certain that justice was not the same thing as love nobody seemed to be capable of giving a clear definition or a theological justification of justice as distinct from love. It is here that our thinking has to start.
What is justice as distinct from love? And what is its theological foundation? Is there room for such justice within a Christian conception of God and of life? It is true that Jesus laying down the rules of His kingdom speaks of love only calling it the “better righteousness”. More than that He interprets this love in sharpest distinction from seeking one's own rights and from legalism. He does not however teach His disciples not to respect the rights of others. The love which He teaches includes this respect for our neighbours’ rights while far transcending it. Love that would not first give the other man what he has a right to claim is mere sentimentality and provokes resentment on the part of one's fellow man. While love is higher than mere justice it is inclusive of justice. Love then presupposes justice. Because this is so there must be a divine norm for this justice which therefore is the basis also of all human law. What is this norm?
Whoever says that a thing is just or unjust is thinking of something which belongs to man. Justice—in its distinction from love—is identical with “belonging” and this “belonging” is to be understood in a normative sense independent of human laws. Justice presupposes a divine order of belonging of whatever kind this belonging may be. This is the meaning of lex naturae both in the pre-Christian and in the Christian sense. But within the Christian faith this order of belonging is not an order of “nature”—in the pantheistic sense of the word—but of God's creation. In creating anything God gives it its own shape; He defines what belongs to its “rightness”. In creating man God says: “This and that belongs to man's life this and that must not be taken away from man but must be given to him. Man whom I have created has a claim to this and that because I created him with this and that. To give it to him is just; not to give it to him is unjust.” The basis of earthly justice of legal order between men is God's creation of man in so far as it includes those things which belong to man and yet could though unjustly be taken away from him by his fellow men. In other words the basis of the Christian conception of justice and law is the Christian conception of man.
And this is as a matter of fact what has been for centuries the foundation of the Christian understanding of law and justice; it is still that where it has not been destroyed or perverted by rationalism and—much worse—by naturalism and sceptical relativism. It is the Christian conception of man as a person having from God's creation his divine origin and dignity a person destined to have communion with other persons a person-in-community. What distinguishes the legal structure of the “Christian” West from antiquity and from the rest of the world is this basic concept of person this Biblical personalism. It hardly needs to be said that this Christian element has only been one of many which actually formed the laws and legal practices of the Western world. But even where it has not been dominant it has still been effective as critical norm and standard.
The mere fact that we speak of “man” thus ignoring all differences of sex age race class etc. is a Christian heritage. In law this idea of “man as such” is of immediate practical importance because it is on this idea that there rests what we call “equal right”. When we read in our Swiss constitution—as probably in many others—“jeder Schweizer ist vor dem Gesetze gleich”2 this is a direct consequence or application of the Christian idea of man. Whatever may be the practical legal consequences drawn from this principle it is in itself a factor of the first magnitude.
It is closely related to a second idea which has exactly the same origin the idea of “human rights”. It is only in quite recent years that we have rediscovered the necessity and bearing of this concept. By it we mean that there are things belonging to man as such rights which precede the state which the state has to acknowledge but which it cannot create “birthrights of manhood” founded on God's creation. It is this conception which distinguishes the lawful state from the totalitarian state. In the moment when these aboriginal human rights are denied or abolished by the state the totalitarian state is there at least in principle. That is why in the preceding parts of this lecture we have laid so much stress on the independence of law from the state. The human rights precede the state in order of dignity. The state is created for the protection of those human rights which man has not from the state but from the Creator.
It is only fair to admit that this principle of human rights and of the conception of “man as man” has its roots not only in the Christian but also in the Stoic conception of man: on that we dwelt in a lecture of the first series. The difference between the Stoic and Christian conceptions of “man as such” however becomes clear in the fact that in Christian anthropology man is not conceived of merely as an independent individual but as a “person-in-community”. While Stoic and modern rationalism construed their philosophy of law and justice entirely from the standpoint of individual personality and therefore influenced the development of society in the direction of a thoroughgoing individualism the Christian conception of man is characterised by a polarity of individual man and social community. Therefore the function of law is to safeguard not merely the rights of the individual but at the same time those of the natural societies. Over against Stoic—or modern—individualism the Christian conception of justice stands for a communal personalism or if you like a personalistic socialism in which the rights of the individual are limited by the rights of the community.
On the other hand this limitation of the individual by the community is entirely different from and strictly opposed to collectivist subordination of the individual particularly under the state. The human person and man's personal rights are derived from the same source as those of the communities. The individual is not a mere function or functionary of the community of the state but has his fundamental independence. In this respect the Christian conception of man however different from individualistic liberalism stands firm on the side of liberalism against all attempts of anonymous society or tyrannical state to degrade the person into a mere instrument of collective power.
There is however an even deeper root of Christian opposition to all kinds of tyranny: the principle of divine sovereignty. The first pronouncement about “belongings” or “rights” is this: that all things belong to God. The jus divinum is not in the first place the right which God gives but the right which God has and this right alone is absolute. The phrase which we read at the beginning of books printed in Great Britain “All rights reserved” is—in its most serious and literal sense—what the principle of the Divine Sovereignty means. By it all human rights are—if I may use this ugly word—de-absolutised. While they are given by God they are nevertheless not absolute. This principle of God's sovereignty is the surest and in fact the only safeguard against two great dangers: a false absolutism of the sovereignty of the people leading to anarchy and a false absolutism of the sovereignty of the state leading to totalitarianism. It is no chance then that in an age which has largely forgotten the meaning of the sovereignty of God mankind is wavering between these two evils anarchic dissolution of law and order and tyrannical totalitarian order.
The recognition of the sovereignty of God is however also a safeguard against a false absolutism of law itself. However firmly grounded these laws may be and must be above all of them we read that inscription: “All rights reserved”. There is no absolute human justice. There is no absolute human law. Therefore we should not attempt what the rationalist philosophers of natural law attempted: to deduce from the first principles of justice a whole system of laws of timeless validity. Human life as seen by the Christian is characterised by two traits which make this impossible its transitoriness and its sinfulness. What was just yesterday may be unjust to-morrow because of changed conditions. What might be just for people who are “angels” may be thoroughly unjust for people who are sinners. There is no possibility of construing a perfect order of law and justice from a few given principles.
The mistrust of all over-systematic doctrines of law and justice is well grounded and we praise the English for their instinct in this matter. But this character of English legal tradition which to us Continentals is at the same time so confusing and so attractive is immune against a most deadly relativism only by reason of the strong infiltration of the jus divinum of the Christian tradition and by the fact that the Christian conception of man is still alive.
There are two errors to be guarded against: deductive a priori constructions of systems and relativistic opportunism. If we look back over the history of European law we can observe quite distinctly that so long as Christian tradition was truly alive and dominant there were no such systems of law as began to be developed by the rationalists of the 18th century. To-day however the second danger is much greater: that all divine foundation norm and sanction of law should disappear in the general trend of relativism and naturalism. The positivistic school of law which has prevailed in Europe for almost a century is largely responsible for the legal chaos and the totalitarian monstrosity.
There is one last reason why we need a foundation of law in the jus divinum. Only where a glimmer of divine light shines through the legal order of a nation can spontaneous obedience be expected. Where the opinion becomes prevalent that law is nothing but human invention a sum of decisions taken by political powers or where the justice of the law disappears under an immensity of technical regulations the people will not obey law spontaneously but only because and in so far as they are afraid of enforcement. And where this condition prevails more and more laws have to be made and more and more force must be used. We can escape the totalitarian state machinery only by the vigour of spontaneous obedience and therefore only by a sense of the sacredness of the legal order. Happy that people which can count upon this attitude of free obedience; and woe to that people which has lost it.
