Growth of Military Classes
Class-differentiation with attendant privileges and prerogatives is especially developed in warlike races, and in nations which must be ever prepared to resist the attacks of enemies, by the establishment of a militant class. The militant class occupies an intermediate position between the governing, priest, and scholar classes on the one hand, and the industrial class—agriculturists, craftsmen, merchants—on the other. Employment in warfare, necessary discipline, near association with the chieftain, and the holding of fiefs for material support give to this class a unique position. Thus the warrior castes developed in India, the feudal and military nobility in Japan, the nobility in Germany, with obligations and service to feudal superiors and to the Court. This system survives for many years, until at last feudal tenure gradually disappears, and its attendant prerogatives are swallowed up by all classes through a universal subjection to military service; although even yet a distinct class of professional soldiers remains at the head of military affairs and operations, and will continue to do so as long as there is a possibility of internal or external warfare. However, here too the militant class is absorbed into a general body of officials. Officials are citizens who not only occupy the usual position of members of the state, but to whom in addition is appointed the execution of the life functions of the nation, as its organs; in other words, such functions as are peculiar to the civic organisation in contradistinction to the general functions exercised and actions performed by individual citizens as independent units. Officialism includes to a special degree duty to its calling and to the public trust, and there are also special privileges granted to officials within the sphere appointed for them.
The Birth of Parliaments
In a society governed by a chieftain, as well as in a monarchy, there is a popular assembly or consultative body; either an unorganised meeting of individuals, or an organised convention of estates founded on class right. A modern development, that certainly had its prototype in the patriarchal state, is the representative assembly, an assembly of individuals chosen to represent the people in place of the popular gathering. The English Government, with its representative legislative bodies, is a typical example in modern civilisation.
One of the chief problems encountered not only in a society ruled by a chieftain, but also in states of later development, whether governed by a potentate or by an aristocracy, is the relation of temporal to spiritual power. Sometimes both are united in the head of the state, as in the cases of the Incas of Peru and of the Caliphate. Sometimes the spiritual head is distinct and separate from the temporal; frequently the two forces are nearly associated, a member of the imperial family being chosen for the office of high-priest, as among the Aztecs. Often, however, the two functions are completely independent of each other, as among many African races, the medicine-man occupying a position entirely independent of the chieftain. Such separation may, of course, lead to friction and civil war; it may also become an element furthering to civilisation, a source of new ideas, opening the way to alliances between nations, and settingbounds to the tyranny of individuals, as exemplified in the relation of the Papacy to the Holy Roman Empire.
State Justice a Momentous Step Forward
The form of state in which the functions of government are exercised by a chieftain contributes greatly to state control and enforcement of justice. The realisation of right had been from the first a social function; but its enforcement was incumbent on the unit group of individuals (families or tribes bound together by friendship). The acquisition by the state of the power to dispense justice and to make and enforce law is one of the greatest events of the world’s history. The idea of all right being incorporated in the chieftain (and social classes) played an important part in bringing about this condition of affairs; for as soon as this conception receives general acceptance, the chieftain, and with him the state, become interested in the preservation and enforcement of justice, even in its lower forms in the common rights of the subjects. On the other hand, not only the interests of chieftainship, but also those of agriculture and commerce, are furthered by the preservation of internal peace; and internal peace calls for state control of justice and enforcement of law.
MansellAN EARLY EGYPTIAN REPRESENTATION OF JUSTICE“The Judgment of the Dead” as illustrated by innumerable paintings on the walls of Egyptian temples and tombs.
Mansell
AN EARLY EGYPTIAN REPRESENTATION OF JUSTICE
“The Judgment of the Dead” as illustrated by innumerable paintings on the walls of Egyptian temples and tombs.
Moreover the religious element worked to the same end. Wickedness was held to be an injury to the deity, whose anger would be visited upon the entire land—a conception that lasted far into the Middle Ages, and according to which the fate of Sodom and Gomorrah was held to be typical of the effect of the curse of God. Already in primitive times religion led to a strange idea of justice—secret societies consecrated by the deity took upon themselves the function of enforcing right, instituting reigns of terror in their districts, maintaining order in society, and claiming authorisation from the god with whose spirit they were permeated. Later, influenced by all these causes, the social aggregate took over the control of justice. It was already considered to be the upholder of right, the servant of the deity, the maintainer of public peace, the dispenser of atoning sacrifices, etc.; and so the various elements conceived of as justice, which had previously been distributed among the single families, tribes, associations, and societies, were combined, and placed under state control.
AN EARLY CONCEPTION OF THE SPIRIT OF JUSTICE: THE JUDGMENT OF SOLOMONReproduced from the picture by the French artist, Nicolas Poussin, who flourished in the first half of the seventeenth century.LARGER IMAGE
AN EARLY CONCEPTION OF THE SPIRIT OF JUSTICE: THE JUDGMENT OF SOLOMON
Reproduced from the picture by the French artist, Nicolas Poussin, who flourished in the first half of the seventeenth century.
LARGER IMAGE
THE MODERN IDEAL OF JUSTICEFrom the fresco by Gerald Moira in the New Central Criminal Court, London. Most of the figures are studies from well-known public men of recent years.LARGER IMAGE
THE MODERN IDEAL OF JUSTICE
From the fresco by Gerald Moira in the New Central Criminal Court, London. Most of the figures are studies from well-known public men of recent years.
LARGER IMAGE
Terror & Tyranny of ReligionThe Ordeal and the Curse
Certain forms for the dispensation of justice, judging of crimes, and determining of punishments were developed. Thus arose the different forms of judicial procedure, which, for a long time bore a religious character. The deity was called upon to decide as to right and wrong—divinity in the form of natural forces. Hence the judgments of God through trial by water, fire, poison, serpents, scales, or—especially in Germany during the Middle Ages—combat, or decision by the divining eye, that was closely allied to the so-called trial by hazard. A peculiar variety of ordeal is that of the bier, according to which the body of a murdered man is called into requisition, the soul of thevictim assisting in the discovery of the murderer. Ordeals are undergone sometimes by one individual, sometimes by two. An advance in progress is the curse, which takes the place of the ordeal, the curse of God being called down upon an individual and his family in case of wrongdoing or of perjury. The curse may be uttered by an individual in co-operation with the members of families. Thus arise ordeals by invocation and by oath with compurgators. Originally a certain period of time was allowed to pass—a month, for example—for the fulfilment of the curse. In later times, whoever took the oath—oath of innocence—was held guiltless. Witnesses succeeded to conjurers; divining looks were replaced by circumstantial evidence; and, instead of a mystic, a rational method of obtaining testimony was adopted. The development was not attained without certain attendant abuses; and the abolition of ordeal by God was among many peoples—notably the inhabitants of Eastern Asia, the American Indians, and the Germans of the Middle Ages—succeeded by the introduction of torture. In many lands torture stood in close connection with the judgment of God; in others it originated either directly or indirectly in slavery. According to the method of obtaining evidence by torture, the accused was forced through physical pain to disclosures concerning himself and his companions, and, in case he himself were considered guilty, to a confession. However barbarous and irrational, this system was employed in Latin and Germanic nations excepting England, until the eighteenth century, in some instances even until the nineteenth.
The Slow Building up of LawEvolution of the Modern State
Judgment was first pronounced in the name of God; in later times, in the name of the people or of the ruler who appeared as the representative of God. The principles of justice, the validity of which at first depends upon custom, are in later times proclaimed and fixed as commands of God. Thus systems of fixed right come into being first in the form of sacred justice, then as commands of God, and finally as law. Law is a conception of justice expressed in certain rules and principles. Originally there were no laws; the standard for justice was furnished to each individual by his own feelings; only isolated cases were recorded. As time advanced, and great men who strove to bring about an improvement in justice arose above the generality of mankind; when the ruling class became differentiated from the other classes; when it was found necessary to root out certain popular customs—then, in addition to the original collection of precedents, there arose law of a higher form: law that stood above precedent, that altered custom, and opened up new roads to justice. Great codes of law have not been compilations only; they have led justice into new paths. Originally a law was looked upon as an inviolable command of God, as unalterable and eternal; its interpretation alone was earthly and transitory. As years passed, men learned to recognise that laws themselves were transitory; and it became a principle that later enactments could alter earlier rules. The relations of later statutes to already established law, and how the laws of different nations influence one another, are difficult, much-vexed questions for the solution of which special sciences have developed—transitory and international law. Judgment and law are intimately concerned with justice, the conception of right as evolved from the double action of life and custom. To this development of justice is united an endeavour of the state or government not only to further welfare by means of the creation and administration of law, but also to take under its control civilising institutions of all sorts. This was originally a feature of justice itself; certain practices inimical to civilisation were interdicted and made punishable offences. Already in the Middle Ages systems of police played a great part among governmental institutions, especially in the smaller states. Subsequently the idea was developed that not only protection through the punishment of crime, but also superintendence of and promotion of the public weal, should be administered by law; and thus the modern state developed with its policy of national welfare. With this arose the necessity for a sharper distinction to be drawn between justice and the various actions of an administration; and thus in modern times men have come to the system—based on Montesquieu—of the separation of powers and independence of justice.
Justice varies according to the development of civilisation, and according to the function that it must perform in this development; in like manner every agecreates its own material and spiritual culture. Every poet is a poet of his own time.
Right Way to View History
The notion of natural right, however unhistorical it was in itself, characterised a period of transition in so far as it enabled men to form a historical conception—a conception of what might be: for, by contrasting actual with ideal justice, we are enabled to escape the bonds of the opinions of a particular time, and to look upon such opinions and views objectively and independently. Yet it is certainly a foolish proceeding to consider an ideal, deduced principally from conceptions and opinions of the present, to be a standard by which to measure the value of historical events of all times, sitting in judgment over the great names of the past with the air of an inspector of morals. The office of the historian as judge of the dead is quite differently constituted. Every age must be judged in accordance with the relation which it bears to the totality of development; and every historical personage is to be looked upon as a bearer of the spirit of his day, as a servant of the ideas of his time. Thus it is quite as wrong to pronounce moral censure on the men of history, as it is wrong to judge an era merely according to its good or evil characteristics. A period must be estimated according to what it has either directly or indirectly accomplished for mankind.
Conception of a United World
There are common factors of civilisation shared by nations themselves, through which many contradictions disappear. The religious civilisations of Christianity, Mohammedanism, Judaism, Buddhism and Confucianism have been the determining factors of the intellectual and emotional life, even influencing the course of events, in vast regions. And thus it is also comprehensible that in the judicial life of nations there is an endeavour for a closer approach, and also the existence of equalising tendencies. In spite of countless variations in detail, there is a certain unity of law in the entire Mohammedan world; and although the hope of establishing the unity of Roman canonistic law over the whole of Christendom has not been realised none the less it was a tremendous idea: that of a universal empire founded on the Roman law of the imperators, and placed under the rule of the German emperor, thus ensuring the continuance of the law of the Roman people—an idea that swayed the intellects of the Middle Ages up to the fourteenth, even to the fifteenth century, and according to which the emperor would have been the head of all Europe, the other sovereigns merely his vassals or fief-holders. This idea, once advocated by such a great spirit as that of Dante, has, like many others, passed into oblivion; and in its place has arisen the conception of independent laws of nations. Yet the original idea has had great influence: it has led to a close union of Christian peoples; it opened a way for Roman law to become universal law, although, to be sure, English law, completely independent of that of Rome, has grown to unparalleled proportions as a universal system, entirely by reason of the marvellous success of the English people as colonists. Likewise international commerce will of itself lead to a unification of mercantile, admiralty, copyright, and patent law.
Then the idea of an international league must develop, arising from the idea of the unity of Christian nations. We have advanced a great distance beyond the time when every foreigner was considered an enemy, and when all foreign phenomena were looked upon as strange or with antipathy. Rules for international commerce are developed; state alliances are entered into for the furtherance of common interests and for the preservation of peace. Many tasks which in former times would have been executed by the empire are now undertaken by international associations; and the time for the establishment of international courts of arbitration for the adjustment of differences between states is already approaching.
Common Interests of Mankind
It also seems probable that states will unite to form political organisations, wholly or partially renouncing their separate positions. Thus nations will be replaced by a federal state, and a multitude of unifying ideas which would otherwise be accomplished with difficulty will come to easy realisation. Federal states were already in existence during the times of patriarchal communities: an especially striking example is that of the admirably constituted federation of the Iroquois nations.
Universal Transmission of Culture
The vision of no man may pierce through to the ultimate end of the processes of history, and to advance hypotheses is a vain endeavour—quite as vain as it would be to expect Plato to have foretold the life of modern civilisation or the imperial idea of mediæval times, or Dante to have foreseen modern industrialism or the character of industrial peoples. To-day we are more certain than ever that no process of development, however simple it may have been, has ever taken place according to a fixed model; all developments have had their own individualities according to place and to time. Thus we must forego discussion of the future.
However, there is another point of view. Development of nations as well as of individuals leads either to progress or to decay. No people may hope to live eternally; and how many acquisitions already gained will be lost in the future it is impossible to say. If a nation declines, it either becomes extinct or is annihilated by another state; it becomes identified with the newer nation, and disappears with its own character; thus its civilisation may also disappear. This is a serious possibility. It is the Medusa head of the world’s history which we must face—and without stiffening to stone.
Influence of Peoples on One Another
There is one truth, however, the knowledge of which fills us with hope for the future: it is the fact that the results of development and civilisation are often transfused from one people to another, so that a given development need not start again from the very beginning. This is owing to the capacity which races have for absorbing or borrowing civilisations. Absorption of culture is by no means universal; it does not prevent the occasional disappearance of civilisation, for every civilisation has before it at least the possibility of death. Nevertheless the transmission and assimilation of culture is constantly taking place. There are various ways in which it may be brought about. A conquering nation may bring its own civilisation with it to the conquered; culture is often forced upon the latter by coercive measures. The conquerors may acquire culture from the vanquished; or assimilation of culture may come about without the subjection of a people, through the unconscious adoption of external customs and internal modes of thought. Finally, culture may be borrowed consciously from one nation by another, the one state becoming convinced of the outward advantages and inner significance of the foreign civilisation.
In this way the problem of development becomes very complicated; many institutions of vanished races thus continue to live on. Certainly the race that acquires a foreign civilisation must, among other things, be so constituted in its motives and aspirations as to lose the very nerves of its being, its very stability, in order that, intoxicated with the joy of a new life, all traces of its past existence may be allowed to break up and disappear. On the other hand, many a promising germ of culture possessed by a vigorous people may come to grief, owing to the influence of acquisitions from without. But, in return, a race that knows how to assimilate foreign culture may obtain a civilisation of such efficiency as it would never before have been capable of attaining, by reason of the fact that its power is established on a recently acquired basis, and because it has been spared a multitude of faltering experiments.
Progress Goes on For Ever
Civilisation may be mutually obtained from reciprocal action, nations both giving and taking. Such a relation naturally arises when states enter into intercourse with one another, when they have become acquainted with one another’s various institutions and are able to recognise the great merits of foreign organisations and the defects of their own. Especially the world’s commerce, in which every nation wishes to remain a competitor, compels towards mutual acceptance of custom and law; no nation desires to be left behind; and each discovers that it will fall to the rear unless it borrow certain things from the others. Such reciprocal action will be the more effective the more like nations are to one another, the better they understand each other, and the more often they succeed not only in adopting the outward forms, but in absorbing the principles of foreign institutions into their own beings.
Thus we may hope that even if the nations of to-day decay and disappear, the labour of the world’s progress will not be lost; it will constantly reappear in new communities which may rejoice in that for which we have striven, and which we have acquired by the exertion of our own powers.
JOSEPHKOHLER