Law and Civilization

When one turns his eyes from law outward, the first effect is to make law shrink into seeming insignificance. There is so much outside. And it so obviously bears in upon and changes and remodels law itself. After a further while--so to speak as the eyes grow adjusted to the glare--one attains a truer picture. One perceives an interplay of causation between law and the world outside. One begins to suspect something of the nature of the interplay. It may have value for you, it may shorten the period of refocussing, it may indeed stir you to break the surface tension of the law and take a slow look around, if I sketch here some outline of what I think one comes to see when he sets out to survey law's relation to civilization.

By civilization I mean what anthropologists call culture, the whole set-up of society, including the ways in which we act and the ways in which we are organized, including our material and intellectual equipment and our ways of using both. As to law, you know roughly what I mean. But it is not workable to tie to a single meaning when dealing with primitive times and with our own as well. You would not have me deny the presence of law in a society merely because there were no state officials. There was an international law before League or U. N. Both law and state have grown, and grown gradually, and at times quite independently of each other. If we are to watch law's relation to civilization we must therefore watch law's development in civilization--and what we watch will be a different thing from time to time and place to place. The sole inescapable common element is dealing with disputes. The sole inescapable common focus is the relation between the ways of dealing with disputes and the other ways of living.

Hence, when I am talking of a ruder culture, before the state and the state's courts, I shall be thinking in the first instance of established ways for settling disputes without resort to violence by the contending parties, or even for settling them by violence, but by violence bridled and curb-bitted. As the state of culture concerned grows more advanced I shall be introducing other ideas commonly associated with this symbol law: e.g., the regular tribunal. As soon as a state appears upon the scene, the idea of action about disputes by the officials of the state will of course appear, and will be contrasted, say with the settlement of a strike by the mediation of a prominent citizen. And that other aspect of law, regulation by officials for greater convenience and safety and prevention of disputes, will play a part. And there will come in from the beginning the notion of some considerable regularity in anything that is done, some recurrence and predictability, and some conception that there ought to be recurrence and predictability: the ideas of precedent and rules--for these are aspects of any institution, legal or other.