Principles of western civilisation

vir ZLHE GREAT ANTINOMY:. FIRST STAGE 243

all the families of mankind there has occurred ‘‘a stage at which a rule of law is not yet discriminated from a rule of religion”; the characteristic of this stage being, as he pointed out, that ‘‘ the members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction.”? It was this stage, as we said in a previous chapter, which lasted down into the midst of the civilisations of the ancient world. It was only the Romans, as Bluntschli points out, who first began to distinguish law from morality ;* and so far as the distinction went, even amongst them, it was practically a product of the later empire. The ascendency of the ruling principle of the stage to which Maine refers may be seen throughout Roman history in the conception of the priesthood as a political office, in the ascription to the emperor down to a late period of divine attributes, and in the conceptions of the ceremonies and functions of the Roman State as religious in character.

Now, in order to understand the character of the phenomenon we are about to consider, we must be able to realise that, if we have been right in the position taken up in the previous chapters, this prolonged stage of human evolution to which Maine here refers,—the period, that is to say, in which a rule of religion and a rule of law are identical—is nothing else than that stage of development we have discussed at length in a previous chapter; namely, that in which the controlling centre of the social

1 Ancient Law, pp. 22-24. 2 Ibid. ° The Theory of the State, by J. K. Bluntschli, I. iii.