by Will Durant
When to this natural basis of custom a supernatural sanction is added by religion, and the ways of one’s ancestors are also the will of the gods, then custom becomes stronger than law, and subtracts substantially from primitive freedom. To violate law is to win the admiration of half the populace, who secretly envy anyone who can outwit this ancient enemy; to violate custom is to incur almost universal hostility. For custom rises out of the people, whereas law is forced upon them from above; law is usually a decree of the master, but custom is the natural selection of those modes of action that have been found most convenient in the experience of the group. Law partly replaces custom when the state replaces the natural order of the family, the clan, the tribe, and the village community; it more fully replaces custom when writing appears, and laws graduate from a code carried down in the memory of elders and priests into a system of legislation proclaimed in written tables. But the replacement is never complete; in the determination and judgment of human conduct custom remains to the end the force behind the law, the power behind the throne, the last “magistrate of men’s lives.”
The first stage in the evolution of law is personal revenge. “Vengeance is mine,” says the primitive individual; “I will repay.” Among the Indian tribes of Lower California every man was his own policeman, and administered justice in the form of such vengeance as he was strong enough to take. So in many early societies the murder of A by B led to the murder of B by A’s son or friend C, the murder of C by B’s son or friend D, and so on perhaps to the end of the alphabet; we may find examples among the purest-blooded American families of today. This principle of revenge persists throughout the history of law: it appears in the Lex Talionis*—or Law of Retaliation—embodied in Roman Law; it plays a large rôle in the Code of Hammurabi, and in the “Mosaic” demand of “an eye for an eye and a tooth for a tooth”; and it lurks behind most legal punishments even in our day.
The second step toward law and civilization in the treatment of crime was the substitution of damages for revenge. Very often the chief, to maintain internal harmony, used his power or influence to have the revengeful family content itself with gold or goods instead of blood. Soon a regular tariff arose, determining how much must be paid for an eye, a tooth, an arm, or a life; Hammurabi legislated extensively in such terms. The Abyssinians were so meticulous in this regard that when a boy fell from a tree upon his companion and killed him, the judges decided that the bereaved mother should send another of her sons into the tree to fall upon the culprit’s neck.20 The penalties assessed in cases of composition might vary with the sex, age and rank of the offender and the injured; among the Fijians, for example, petty larceny by a common man was considered a more heinous crime than murder by a chief.21 Throughout the history of law the magnitude of the crime has been lessened by the magnitude of the criminal.* Since these fines or compositions, paid to avert revenge, required some adjudication of offenses and damages, a third step towards law was taken by the formation of courts; the chief or the elders or the priests sat in judgment to settle the conflicts of their people. Such courts were not always judgment seats; often they were boards of voluntary conciliation, which arranged some amicable settlement of the dispute.† For many centuries, and among many peoples, resort to courts remained optional; and where the offended party was dissatisfied with the judgment rendered, he was still free to seek personal revenge.22
In many cases disputes were settled by a public contest between the parties, varying in bloodiness from a harmless boxing-match—as among the wise Eskimos—to a duel to the death. Frequently the primitive mind resorted to an ordeal not so much on the medieval theory that a deity would reveal the culprit as in the hope that the ordeal, however unjust, would end a feud that might otherwise embroil the tribe for generations. Sometimes accuser and accused were asked to choose between two bowls of food of which one was poisoned; the wrong party might be poisoned (usually not beyond redemption), but then the dispute was ended, since both parties ordinarily believed in the righteousness of the ordeal. Among some tribes it was the custom for a native who acknowledged his guilt to hold out his leg and permit the injured party to pierce it with a spear. Or the accused submitted to having spears thrown at him by his accusers; if they all missed him he was declared innocent; if he was hit, even by one, he was adjudged guilty, and the affair was closed.23 From such early forms the ordeal persisted through the laws of Moses and Hammurabi and down into the Middle Ages; the duel, which is one form of the ordeal, and which historians thought dead, is being revived in our own day. So brief and narrow, in some respects, is the span between primitive and modern man; so short is the history of civilization.
The fourth advance in the growth of law was the assumption, by the chief or the state, of the obligation to prevent and punish wrongs. It is but a step from settling disputes and punishing offenses to making some effort to prevent them. So the chief becomes not merely a judge but a lawgiver; and to the general body of “common law” derived from the customs of the group is added a body of “positive law,” derived from the decrees of the government; in the one case the laws grow up, in the other they are handed down. In either case the laws carry with them the mark of their ancestry, and reek with the vengeance which they tried to replace. Primitive punishments are cruel,24 because primitive society feels insecure; as social organization becomes more stable, punishments become less severe.
In general the individual has fewer “rights” in natural society than under civilization. Everywhere man is born in chains: the chains of heredity, of environment, of custom, and of law. The primitive individual moves always within a web of regulations incredibly stringent and detailed; a thousand tabus restrict his action, a thousand terrors limit his will. The natives of New Zealand were apparently without laws, but in actual fact rigid custom ruled every aspect of their lives. Unchangeable and unquestionable conventions determined the sitting and the rising, the standing and the walking, the eating, drinking and sleeping of the natives of Bengal. The individual was hardly recognized as a separate entity in natural society; what existed was the family and the clan, the tribe and the village community; it was these that owned land and exercised power. Only with the coming of private property, which gave him economic authority, and of the state, which gave him a legal status and defined rights, did the individual begin to stand out as a distinct reality.25 Rights do not come to us from nature, which knows no rights except cunning and strength; they are privileges assured to individuals by the community as advantageous to the common good. Liberty is a luxury of security; the free individual is a product and a mark of civilization.
IV. THE FAMILY
Its function in civilization—The clan vs. the family—Growth of parental care—Unimportance of the father—Separation of the sexes—Mother-right—Status of woman—Her occupations—Her economic achievements—The patriarchate—The subjection of woman
As the basic needs of man are hunger and love, so the fundamental functions of social organization are economic provision and biological maintenance; a stream of children is as vital as a continuity of food. To institutions which seek material welfare and political order, society always adds institutions for the perpetuation of the race. Until the state—towards the dawn of the historic civilizations—becomes the central and permanent source of social order, the clan undertakes the delicate task of regulating the relations between the sexes and between the generations; and even after the state has been established, the essential government of mankind remains in that most deep-rooted of all historic institutions, the family.
It is highly improbable that the first human beings lived in isolated families, even in the hunting stage; for the inferiority of man in physiological organs of defense would have left such families a prey to marauding beasts. Usually, in nature, those organisms that are poorly equipped for individual defense live in groups, and find in united action a means of survival in a world bristling with tusks and claws and impenetrable hides. Presumably it was so with man; he s
aved himself by solidarity in the hunting-pack and the clan. When economic relations and political mastery replaced kinship as the principle of social organization, the clan lost its position as the substructure of society; at the bottom it was supplanted by the family, at the top it was superseded by the state. Government took over the problem of maintaining order, while the family assumed the tasks of reorganizing industry and carrying on the race.
Among the lower animals there is no care of progeny; consequently eggs are spawned in great number, and some survive and develop while the great majority are eaten or destroyed. Most fish lay a million eggs per year; a few species of fish show a modest solicitude for their offspring, and find half a hundred eggs per year sufficient for their purposes. Birds care better for their young, and hatch from five to twelve eggs yearly; mammals, whose very name suggests parental care, master the earth with an average of three young per female per year.26 Throughout the animal world fertility and destruction decrease as parental care increases; throughout the human world the birth rate and the death rate fall together as civilization rises. Better family care makes possible a longer adolescence, in which the young receive fuller training and development before they are flung upon their own resources; and the lowered birth rate releases human energy for other activities than reproduction.
Since it was the mother who fulfilled most of the parental functions, the family was at first (so far as we can pierce the mists of history) organized on the assumption that the position of the man in the family was superficial and incidental, while that of the woman was fundamental and supreme. In some existing tribes, and probably in the earliest human groups the physiological rôle of the male in reproduction appears to have escaped notice quite as completely as among animals, who rut and mate and breed with happy unconsciousness of cause and effect. The Trobriand Islanders attribute pregnancy not to any commerce of the sexes, but to the entrance of a baloma, or ghost, into the woman. Usually the ghost enters while the woman is bathing; “a fish has bitten me,” the girl reports. “When,” says Malinowski, “I asked who was the father of an illegitimate child, there was only one answer—that there was no father, since the girl was unmarried. If, then, I asked, in quite plain terms, who was the physiological father, the question was not understood. . . . The answer would be: ‘It is a baloma who gave her this child.’” These islanders had a strange belief that the baloma would more readily enter a girl given to loose relations with men; nevertheless, in choosing precautions against pregnancy, the girls preferred to avoid bathing at high tide rather than to forego relations with men.27 It is a delightful story, which must have proved a great convenience in the embarrassing aftermath of generosity; it would be still more delightful if it had been invented for anthropologists as well as for husbands.
In Melanesia intercourse was recognized as the cause of pregnancy, but unmarried girls insisted on blaming some article in their diet.28 Even where the function of the male was understood, sex relationships were so irregular that it was never a simple matter to determine the father. Consequently the quite primitive mother seldom bothered to inquire into the paternity of her child; it belonged to her, and she belonged not to a husband but to her father—or her brother—and the clan; it was with these that she remained, and these were the only male relatives whom her child would know.29 The bonds of affection between brother and sister were usually stronger than between husband and wife. The husband, in many cases, remained in the family and clan of his mother, and saw his wife only as a clandestine visitor. Even in classical civilization the brother was dearer than the husband: it was her brother, not her husband, that the wife of Intaphernes saved from the wrath of Darius; it was for her brother, not for her husband, that Antigone sacrificed herself.30 “The notion that a man’s wife is the nearest person in the world to him is a relatively modern notion, and one which is restricted to a comparatively small part of the human race.”31
So slight is the relation between father and children in primitive society that in a great number of tribes the sexes live apart. In Australia and British New Guinea, in Africa and Micronesia, in Assam and Burma, among the Aleuts, Eskimos and Samoyeds, and here and there over the earth, tribes may still be found in which there is no visible family life; the men live apart from the women, and visit them only now and then; even the meals are taken separately. In northern Papua it is not considered right for a man to be seen associating socially with a woman, even if she is the mother of his children. In Tahiti “family life is quite unknown.” Out of this segregation of the sexes come those secret fraternities—usually of males—which appear everywhere among primitive races, and serve most often as a refuge against women.32 They resemble our modern fraternities in another point—their hierarchical organization.
The simplest form of the family, then, was the woman and her children, living with her mother or her brother in the clan; such an arrangement was a natural outgrowth of the animal family of the mother and her litter, and of the biological ignorance of primitive man. An alternative early form was “matrilocal marriage”: the husband left his clan and went to live with the clan and family of his wife, laboring for her or with her in the service of her parents. Descent, in such cases, was traced through the female line, and inheritance was through the mother; sometimes even the kingship passed down through her rather than through the male.33 This “mother-right” was not a “matriarchate”—it did not imply the rule of women over men.34 Even when property was transmitted through the woman she had little power over it; she was used as a means of tracing relationships which, through primitive laxity or freedom, were otherwise obscure.35 It-is true that in any system of society the woman exercises a certain authority, rising naturally out of her importance in the home, out of her function as the dispenser of food, and out of the need that the male has of her, and her power to refuse him. It is also true that there have been, occasionally, women rulers among some South African tribes; that in the Pelew Islands the chief did nothing of consequence without the advice of a council of elder women; that among the Iroquois the squaws had an equal right, with the men, of speaking and voting in the tribal council;36 and that among the Seneca Indians women held great power, even to the selection of the chief. But these are rare and exceptional cases. All in all the position of woman in early societies was one of subjection verging upon slavery. Her periodic disability, her unfamiliarity with weapons, the biological absorption of her strength in carrying, nursing and rearing children, handicapped her in the war of the sexes, and doomed her to a subordinate status in all but the very lowest and the very highest societies. Nor was her position necessarily to rise with the development of civilization; it was destined to be lower in Periclean Greece than among the North American Indians; it was to rise and fall with her strategic importance rather than with the culture and morals of men.
In the hunting stage she did almost all the work except the actual capture of the game. In return for exposing himself to the hardships and risks of the chase, the male rested magnificently for the greater part of the year. The woman bore her children abundantly, reared them, kept the hut or home in repair, gathered food in woods and fields, cooked, cleaned, and made the clothing and the boots.37 Because the men, when the tribe moved, had to be ready at any moment to fight off attack, they carried nothing but their weapons; the women carried all the rest. Bush-women were used as servants and beasts of burden; if they proved too weak to keep up with the march, they were abandoned.38 When the natives of the Lower Murray saw pack oxen they thought that these were the wives of the whites.39 The differences in strength which now divide the sexes hardly existed in those days, and are now environmental rather than innate: woman, apart from her biological disabilities, was almost the equal of man in stature, endurance, resourcefulness and courage; she was not yet an ornament, a thing of beauty, or a sexual toy; she was a robust animal, able to perform arduous work for long hours, and, if necessary, to fight to the death for her children or her clan. “Women,” said a chieftain of the
Chippewas, “are created for work. One of them can draw or carry as much as two men. They also pitch our tents, make our clothes, mend them, and keep us warm at night. . . . We absolutely cannot get along without them on a journey. They do everything and cost only a little; for since they must be forever cooking, they can be satisfied in lean times by licking their fingers.”40
Most economic advances, in early society, were made by the woman rather than the man. While for centuries he clung to his ancient ways of hunting and herding, she developed agriculture near the camp, and those busy arts of the home which were to become the most important industries of later days. From the “wool-bearing tree,” as the Greeks called the cotton plant, the primitive woman rolled thread and made cotton cloth.41 It was she, apparently, who developed sewing, weaving, basketry, pottery, woodworking, and building; and in many cases it was she who carried on primitive trade.42 It was she who developed the home, slowly adding man to the list of her domesticated animals, and training him in those social dispositions and amenities which are the psychological basis and cement of civilization.
