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CHAPTER II.
Relatively speaking, law is a product of modern times. For ages and ages mankind lived without any written law, even that graved in symbols upon the entrance stones of a temple. During that period, human relations were simply regulated by customs, habits and usages, made sacred by constant repetition, and acquired by each person in childhood, exactly as he learned how to obtain his food by hunting, cattle-rearing, or agriculture.
All human societies have passed through this primitive phase, and to this day a large proportion of mankind have no written law. Every tribe has its own manners and customs; customary law, as the jurists say. It has social habits, and that suffices to maintain cordial relations between the inhabitants of the village, the members of the tribe or community. Even amongst ourselves—the “civilized” nations—when we leave large towns, and go into the country, we see that there the mutual relations of the inhabitants are still regulated according to ancient and generally accepted customs, and not according to the written law of the legislators. The peasants of Russia, Italy, and Spain, and even of a large part of France and England, have no conception of written law. It only meddles with their lives to regulate their relations with the State. As to relations between themselves, though these are sometimes very complex, they are simply regulated according to ancient custom. Formerly, this was the case with mankind in general.
Two distinctly marked currents of custom are revealed by analysis of the usages of primitive people.
As man does not live in a solitary state, habits and feelings develop within him which are useful for the preservation of society and the propagation of the race. Without social feelings and usages, life in common would have been absolutely impossible. It is not law which has established them; they are anterior to all law. Neither is it religion which has ordained them; they are anterior to all religions. They are found amongst all animals living in society. They are spontaneously developed by the very nature of things, like those habits in animals which men call instinct. They spring from a process of evolution, which is useful, and, indeed, necessary,
