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William Graham Sumner

Folkways and Mores


Sumner in his classic work on Folkways(1906) has indirectly provided a convenient sociological commentary on assumption typical of common law thinking. He tried to explain the forces of social cohesion, the element that contribute order and unity in societies.

Folkways and Mores


Sumner writes, if we put together

all we have learnt from anthropology and ethnography about primitive men and primitive society we perceive that the first task of life is to live (i.e to survive)..Need was the first experience and it was followed by some blundering effort to satisfy it.

Folkways and Mores


The basic method for early man in attempting to solve the problem of survival was trial and error, a blundering utilitarianism. The ability to distinguish pleasure and pain is the only psychical power which is to be assumed. The experience of pleasure and pain provided the test of success. But the historical struggle for survival went on in groups so that many seeking the same aim tended to come to similar opinion as what was best, more productive of pleasure than pain. Each profited by others experience.

Folkways and Mores


There was concurrence towards that which proved to most expedient. All at last adopted the same way for the same purpose . Hence ways turned into customs and became mass phenomena. Instincts were developed in connection with them. In this way FOLKWAYS arise. The concept of Folkways is at the heart of Sumners thinking. They are group ways of doing things, of solving problems.

Folkways and Mores


All the life of human beings in all ages and stages of culture, is primarily controlled by a vast mass of folkways handed down from the earliest existence of the race. They are not conscious creation but like products of natural forces which men unconsciously set in operation, orlike the instinctive ways of animals which are developed out of experience. The young learn them through tradition, imitation and authority.

Folkways and Mores


The Folkways provide for all the needs of life. They specify the best way to make a fire, to cook meat, to greet ones neighbour, to raise ones children. They are uniform, universal in the group, imperative and invariable and as time goes on they become more and more arbitrary, positive and imperative. In the early society, folkways are sanctioned by fear of ancestors. The ghosts of ancestors would be angry if the living should change the ancient ways

Folkways and Mores


However other ideas eventually become attached to the folkways beyond that of their utility. Folkways are not noticed or consciously considered until long after they have become established. Some folkways come to be seen as good for the welfare of the society. The judgment of social welfare may eventually diverge from relatively simple utilitarian judgment of pleasure and pain. The conversion of folkways in this manner requires some intelligent reflection on experience. When the judgment of social good is added to folkways, they become MORES.

Folkways and Mores


When the elements of truth and right are developed into doctrines of welfare, the folkways are raised to another plane. They then become capable of producing inferences developing into new forms and extending their constructive influence over men and society. They become sources of the science and art of living.

Mores and Law


Law grows, or should grow out of the Mores. It shades into them but is distinguished by being backed by state force. Folkways and Mores change gradually as the conditions of life change but there is, in Sumners view, little scope for changing them fundamentally through any conscious acts of legislation. Legislation has to seek standing ground on the existing mores andlegislation, to be strong must be consistent with the Mores. Thus Social life has a dynamic of its own.

Mores and Law


Law, philosophy, religion and morality have no independent existence but are various reflection of that dynamic. They are deeply rooted in the processes of social development, yet virtually powerless to alter them. Thus rights are the expression of the rules of mutual give and take in the competition of life which are accepted within the group in the interests of peace. They are never natural, God-given or absolute in any sense.

Mores and Law


Morality is the sum taboos and prescriptions in the mores by which right conduct is defined. So, morals are never intuitive but historical, institutional and empirical. Philosophy and ethics, too are product of the mores and philosophy attempts the impossible when it tries to construe absolutes from the accidents of experience which shape the mores. As per the modern perspective, like Folkways, Mores also do not necessarily have a rational source.

Mores and Law


Some derives from mistaken inferences from experience, and from what Sumner calls the aleatory interest. The rationally uncontrollable factor of good and bad fortune. The aleatory interest has always been the connecting link between the struggle for existence and religion. It was only by religious rites that the aleatory element in the struggle for existence could be controlled.

Mores and Law


Primitive man was always concerned with the question of avoiding bad luck and securing good luck. Aleatory element can also be called element of chance. Hence the primitive man focused his attention on winning the favours of supernatural forces so that he gets only fortunes and not misfortunes. Religion arose as a devise to insure against misfortune.

Mores and Law


Sumner says that Folkways and Mores are rooted in the life of the masses. A ruling elite can, to some extent, alter its own mores and exert influence by legislation or other means on those of the common man. But the masses, the core of the society, are conservative, living by tradition and habit. And since an elite will not want to stir up change in such a way as to upset its own privileged position. Law will in any event be used more often to reinforce the mores of the masses than to reshape them.

Mores and Law


In any case, to the extent that law deliberately separates itself from the mores, it weakens its social base and authority. Legislation against the mores is likely to be futile. Sumner provides a sociological basis for common law assumptions about the deep social roots of law and the slow process of legal evolution. Common law thought does assume something like this slow emergence of law through a process of evolution of social norms. At the same time, Sumner offers a warning about modern forms of law.

Mores and Law


Legislation can and does diverge from the mores and to the extent that this occurs, it threatens to become divorced from the sources of its authority and potentially ineffective. The legislator therefore needs to understand the nature of the complex social ties on which the cohesion of a society depends. For lawyers, law is at the centre of the things but its social significance depends on social conditions which vary in different stages of social development in different societies and which law itself has little power to shape.

Evaluation
Sumner does not offer an adequate account of how the Folkways and Mores of some groups or elements in a society may prevail over those of other groups. He does not even give account of the special role of law in maintaining social cohesion or social order. The attempt to found common law assumptions in sociological analysis leads to powerful assertion of laws lack of autonomy as a social institution. But it merely raises further questions about the nature of the forces that shape law.

Friedrich Karl von Savigny

Savigny
The late 18th century and early 19th centuries saw the emergence of the first great European legal codes, most notably the French Civil Code of 1804. With them the modern idea of law as a comprehensive system of logically ordered and conceptually coherent doctrine, as opposed to a mere collection of customary rules or judicial precedents, became established in continental Europe. The German conservative statesman and jurists Friedrich Karl von Savigny was, in this context eloquent defenders of the old legal world.

Savigny
To Savigny, the proposed codification of German law at the beginning of the 19th century seemed disastrous. Primarily, because it sought to fix in immutable principles, legal ideas which, as an expression of culture should be allowed to develop spontaneously. While Sumner emphasises the insensitivity and ineffectiveness of legal innovations through legislation if social roots of law are ignored. Savigny stresses the atrophying of natural processes of change in social rules when the state ignores those processes and seeks to fix legal doctrine in a comprehensive conceptual system.

Savigny
In a famous pamphlet of 1814, Savigny set out the reasons for his opposition to codification and in doing so spelled out a theory of social basis of law which was to have profound influence. For Savigny, law is an expression- one of the most important expression together with language. Volkgeist- spirit of the people. This deeply mystical idea atleast involves the notion that law is much more than a collection of rules or judicial precedents. It reflects and expresses a whole cultural outlook.

Savigny
The spirit of a nation or people is the encapsulation of its whole history, the collective experience of the social group extending back through the ages of its existence . The law of such people or nation written down at any given time is no more than a static representation of a process which is always continuing: the evolution of culture. For Savigny, law is incomprehensible as a social phenomenon except in the perspective of the history of the society in which it exists.

Savigny
Legal development passes through the early stage of unwritten customs, followed by writing down of customs as rules. The earliest known written codes of law, for example- Code of Hammurabi give all the appearances of more or less systematic collection of customary norms. Yet, as has often been remarked, with this writing down customary law lost its character as custom. It could be interpreted as rules.

Savigny
The reduction of law to written form reflected the rise of political authorities and the transformation of law from customary norms based on the relations of individuals arising out of chance circumstances to an aspect of political power. In Savignys analysis, from this stage of historical development, laws sociological character seems to become ever more problematic. As society develops, the division of functions becomes more clearcut among its members and the development of classes and subgroups becomes more pronounced.

Savigny
In early society, volkgeist is reasonably identifiable and capable of spontaneous expression through law, this becomes progressively less so for two reasons: - First, division of function and class make it harder for the common consciousness of the people to provide a sufficiently powerful impetus for the spontaneous creation of new law. - Secondly, the forms of law themselves become more complex until they leave behind the common consciousness as far as the details and techicalities of the rules are concerned.

Savigny
According to Savigny, this situation gives rise to two major institutional developments: - Modern Legislation. - Modern Legal science. When spontaneous processes of law creation no longer operate effectively, legislative institutions are necessary. Legislation is important : - First to remove doubts and uncertainties in evolving law. - Secondly to enact settled customary law but not in the manner of a code which denies the evolutionary nature of law by setting out fix, final and comprehensive principles.

Savigny
Legislative activities when drift from their appropriate functions, they become detached and remote. Somehow the legislator must be the true representative of the volkgeist. As law drifts further away from its roots in community life and ceases to be a part of folk knowledge, its knowledge becomes the monolpoly of a special order of persons skilled in law whose job is to know and organise the rules of law.

Savigny
Law henceforth leads a twofold life - In its broad outline, it continues to live in the common consciousness of the people. - In detail, it becomes the sole preserve of lawyers.