§2. I have examined with some minuteness the process of development of law in a modern community, because it is due to the special characteristics of this process that the differences in such a community between Law and Positive Morality, when compared merely as intelligible systems of rules without regard to the motive for obeying them, are as striking and instructive as the differences in the sanctions attached to the two systems. We can see how law naturally tends to be greatly superior to Positive Morality in definiteness and consistency; since in the case of moral rules there is no judicial process by which doubts as to what the accepted rule is on any question can be authoritatively settled, and no legislative process by which any divergence from what, in the opinion of thoughtful persons, ought to be established morality, can be at once and decisively removed.
And it may be observed that the differences between the two systems of rules, both in respect of sanction and in respect of systematic intelligibility, have tended to become more marked as modern civilisation has developed. In earlier stages of European civilisation, there has often been law in real operation, in the sense of a complicated system of precise rules applied to the guidance of men's conduct by experts whose authority is generally accepted, with little or no governmental force sustaining the acceptance of the rules. Under these circumstances, Law approaches to Positive Morality in respect of its sanction; and, on the other side, in periods when casuistry has really flourished,---as in the period of the later Middle Ages,---Positive Morality has shown an approximation to Law in the elaborateness and precision of its rules. From the fourteenth century onward, the acumen and industry of ecclesiastical writers were largely occupied in working out in a quasi-legal manner a body of rules, to be applied in the confessional to the practical guidance of ordinary private members of the medieval community: while, before the Reformation, there was no disposition, at once strong, widespread, and unconcealed, to dispute the claim of these writers to authority in the matters with which they dealt.
If we ask why this quasi-legal treatment of morality fell into the disrepute in which it now lies, there is a twofold answer to be given,---apart from the general indignation caused by Jesuitry, the effect of which taken alone would doubtless only have been transient. Partly the belief came to be widely held that in matters of morality, speaking broadly, any one honest man is as much an expert as any other, and that it is his duty to exercise his own judgment and follow the light of his own conscience. Partly---so far as some further enlightenment of a plain man's conscience was felt to be a desideratum---experience was thought to have shown the danger of trying to obtain this enlightenment from the industry and ingenuity of systematic moralists, exercised in formulating precisely the generally accepted rules: since the quasi-legal process of scrutinising closely the cases of difficulty and apparent conflict among such rules, in order to draw the lines of duty clear, must tend to bring into demoralising prominence the uncertainty and disagreement among experts on moral questions: while the lack of an authority to decide controversies rendered it impossible to reduce the element of doubt and discussion in the manner in which it is continually reduced in the development of law. And thus, as I have said, the moral code of a modern country has come to be necessarily inferior as an intelligible system to its law, because in the case of the former every man is encouraged to think himself a judge, there is no final court of appeal, and no one can admit any external legislation.
The consequence of this is, not only that we find, in the generally accepted moral code of a modern society, an amount of conflict, vagueness, and uncertainty, that could not for a moment be tolerated in modern law: but also that, when we examine closely the aggregate of opinions and sentiments, the expression of which in word or act constitutes the effective sanction of positive morality, we find, along with the generally accepted code, a number of special codes, more or less divergent from it on important points. What is called the code of honour---the rules of behaviour maintained by the consensus of gentlemen in modern Europe---is a well-known instance of this: but the same phenomenon is exhibited in some degree by various other divisions of society, based upon different grounds,---e.g. by religious sects and parties, and the members of different trades and professions. And thus sometimes, owing to the predominance of particular religious sects or industrial classes, or of particular schools of thought or drifts of opinion, in different localities, we find noteworthy local variations in the prevalent judgment as to what is mischievous or the reverse in conduct.
[Back to:] [Elempol, Chapter 13, Section 1] Law and Morality