2.

The law is a relatively modern phenomenon; humanity lived century after century without any kind of written law, not even one simply carved in symbols, on stones, at the entries to temples. In that epoch the relations between men were regulated by simple customs, by habits and usages, which constant repetition rendered venerable and which everyone acquired in childhood, as they learnt to win their food by hunting, rearing cattle or tilling the land.

All human societies have passed through that primitive stage, and even at the present time a great proportion of humanity lives without written rules. The tribes have manners and customs -- "customary right" as the jurists say; they are social by habit, and that is enough to sustain good relations, between the members of the village, the tribe, the community. It is the same among us, the civilized people; you need only go out of the great cities to see that the mutual relations of the inhabitants are still regulated, not by the written law of the legislators, but by old customs that are still generally accepted. The peasants of Russia, Italy, Spain, and even much of France and England, have no conception of the written law. The latter enters their lives only to control their relations with the State; as to their mutual relations, they still follow the old customs. Once it was so for all humanity.

When one studies the customs of primitive peoples, two very different currents appear.

Since man is not a solitary creature, he develops within himself the feelings and habits that tend to sustain society and propagate the race. Without sociable feeling, without practices leading to solidarity, life in common would have been entirely impossible.

Such feelings and practices are not established by the law; they precede all laws. Nor is it religion that lays them down; they are anterior to all religions, for they are to be found already among animals that live in societies. They develop spontaneously, through the nature of things like those habits among animals which men call instinct; they emerge from a useful and even necessary process of evolution that sustains society in the struggle for existence in which it is involved. Savages end up no longer eating each other, because they find that it is much more advantageous to devote themselves to some kind of culture rather than to procure once a year the pleasure of nourishing themselves on the flesh of an aged parent. Within those tribes which are absolutely independent and know neither laws nor priests and whose ways have been portrayed by many travellers, members of the same clan cease to knife each other in every dispute, since the habit of living in society has ended by developing in them a certain sense of brotherhood and solidarity; they prefer to refer to third parties to settle their differences. The hospitality of primitive peoples, the respect for human life, the feeling for reciprocity, compassion for the weak, the courage to sacrifice oneself in the interest of others, which one learns to practice first towards children and friends and afterwards towards all members of the community -- all these qualities developed among mankind before there were any laws and independently of any religion, as they had developed among all the social animals. Such sentiments and practices are the inevitable result of life in society. Without being inherent in man (as the priests and metaphysicians say) these qualities are the result of life in common.

But, alongside these customs, necessary for the life of societies and conservation of the race, other passions and desires appear and other habits and customs emerge from them. The desire to dominate others and impose one's will on them; the desire to lay hold the products of a neighbouring tribe's work; the desire to subjugate other men, so as to gather luxuries around one, without oneself working, while slaves produce what is necessary and procure for their master all the pleasures and sensual satisfactions: such personal and egotistic desires create another current of habits and customs. The priest, that charlatan who exploits superstition and, having freed himself of the fear of devils, spreads it among others; the warrior, that braggart who urges the invasion and pillage of neighbours so as to return loaded with booty and followed by slaves: both, hand in hand, succeed in imposing on primitive societies customs that are advantageous to themselves and that tend to perpetuate their domination over the masses. Profiting from the indolence, fear and inertia of the ordinary people, and from the constant repetition of the same actions, they succeed in establishing permanently the customs that become the basis of their domination.

To that end, they exploit first of all the spirit of routine that is so developed among men and already is so striking among children, and primitive folk, as well as among animals. Particularly when he is superstitious, man is always fearful of exchanging what is for what might be; in general he venerates whatever is ancient. "Our fathers lived so; they were not unhappy and, as they taught, you should do the same!" say the old men to the young people whenever the latter want to change something. The unknown frightens them; they prefer to hold on to the past, even when that past means poverty, oppression and slavery. One might even say that the more unfortunate a man is, the more he fears changing his situation, lest he become even more wretched; it is only when a ray of hope and a hint of well-being enter his miserable cabin, that he begins to want something better, to criticize his old way of living, to desire a change. If that desire has not penetrated him, if he has not shaken off the tutelage of those who make use of his superstitions and fears, he will choose to remain in the same situation. If the young people want to change something, the old will raise the cry of alarm against the innovators. A primitive man may well prefer to let himself be killed rather than transgress the customs of his people, since from childhood he has been told that the slightest infraction of established customs might bring misfortune down upon him and even result in the ruin of his whole tribe. And even today, there are many politicians and even self-styled revolutionaries who act in the same way, clinging to a past that is on its way out. How many of them have no care but to seek out precedents? And how many ardent innovators are merely the imitators of past revolutions?

This spirit of routine, which finds its origin in superstition, indolence and cowardice, is always the great strength of the oppressors; and in primitive human societies it was always exploited by the priests and the military chiefs, perpetuating customs advantageous to them alone, which they succeeded in imposing on the tribes. So long as this spirit of conservatism, cleverly exploited, sufficed to allow the chiefs to trespass on the freedom of individuals; so long as the inequalities between men were natural ones and were not magnified and multiplied by the concentration of power and wealth; there was not yet any need for the law and for the formidable machinery of tribunals that would impose it with their ever increasing penalties.

But when society had begun to split up into two hostile classes -- one that seeks to establish its domination and the other that seeks to escape from it -- then the struggle broke out. Whoever was the conqueror now hastened to give permanence to the accomplished situation; he sought to make it unchallengeable, to render it holy and venerable by all the criteria that the conquered might respect. Law made its appearance, sanctified by the priest and having at its service the warrior's mace. It sought to stabilize the customs that were advantageous to the dominant minority, and the military authority undertook to ensure obedience. At the same time the warrior found in this new function an instrument for validating his power; no longer did he have at his service mere brute force, for now he was the defender of the law.

But if the law presented nothing more than a series of regulations favouring merely the rulers, it would have difficulty in being accepted and obeyed. Therefore the legislator mingled in his code the two currents of which we have just been speaking; the maxims that represent the principles of morality and solidarity developed through life in common, and the orders that are always needed to consecrate inequality. The customs that are absolutely essential for the very existence of society were easily mingled in the Code with practices imposed by the rulers, and aspired to the same respect from the crowd. "Do not kill!" says the Code, and it hastens to add, "Pay your tithe to the priest!" "Do not steal!" says the Code, and immediately afterward, "Whoever does not pay his taxes shall be punished!"

Such is the law, and the double character that it sustains to this day. Its origin lies in the desire of the dominant class to preserve the customs which they themselves have imposed for their own advantage. Its true character lies in the clever mingling of customs which have no need of laws to be respected, with the other customs that offer advantages only for the rulers, that are harmful to the masses and are maintained only by the fear of punishment.

No more than individual capital, born of fraud and violence and developed under the auspices of authority, has the law any title to human respect. Born of violence and superstition, established in the interest of the priest, the conqueror and the rich exploiter, it will be abolished entirely on the day the people decide to break their chains.

Of all this we shall become even more convinced as we analyze, in the following chapter, the further development of the law under the auspices of religion, authority, and the present-day parliamentary system.