Unreasonable customs become unreasonable moral rules then unreasonable laws

There seems to be a natural progression found in all human societies. Long before a society has explicit moral rules it has social customs, which may have been unchanged for millennia. The customs have their roots in the society’s natural and human environment. They may be appropriate for that environment, in its particular time and place, but not necessarily in different environments.

However, since people in the society have no experience with any other customs, they assume the customs must be justified as simply “common sense”. Customs are learned by everyone as young children who imitate what is done by most people they know. Further, even as adults individuals are not inclined to question or challenge society’s customs, because to do so risks ostracism and possible harm from others in the society. People who questions customs are seen as nonconformists, who are unpredictable and can’t be trusted. And so customs eventually become inflexible “moral” rules, violation of which is considered “taboo”.

Since the earliest “modern” civilizations several thousand years ago, taboos and moral rules have further become codified in the formal legal system of a society. Punishment of violation of customs-become-laws is no longer arbitrary and left to the discretion of people closest to the custom-breakers. Punishment of verified custom-breaking becomes mandatory and inflexible. Elaborate social systems are put in place to apprehend and put custom-breakers on trial, and eventually to apply prescribed punishments.

But what if the social customs on which laws are ultimately based are misconceived or no longer appropriate for a contemporary environment? Bad customs remain in the form of bad laws – resulting in unjust and overly harsh punishment for personal choices and personal behavior that pose no real harm to others.

And so it is that the custom of wearing clothing in certain circumstances (when the custom may have been reasonable) has evolved into the obligation to wear clothing in most circumstances. This is the whole story of the indiscriminate and inflexible way nudity is treated in most modern societies.

The 16th century French essayist Michel de Montaigne had a lot to say on the subject of custom and habit (sometimes the same word in the original French). In his essay, “Of custom, and not easily changing an accepted law”, there’s this: “Habituation puts to sleep the eye of our judgement.” He gives numerous examples of radically different customs humans have had in various times and places, sometimes even in close proximity. And later observes

The principal effect of the power of custom is to seize and ensnare us in such a way that it is hardly within our power to get ourselves back out of its grip and return into ourselves to reflect and reason about its ordinances. In truth, because we drink them with our milk from birth, and because the face of the world presents itself in this aspect to our first view, it seems that we are born on condition of following this course. … Whence it comes to pass that what is off the hinges of custom, people believe to be off the hinges of reason. [Translation by Donald M. Frame]

In a later essay (“On the custom of wearing clothes”) Montaigne begins:

Wherever I want to turn, I have to force some barrier of custom, so carefully has it blocked all our approaches. I was wondering in this shivery season whether the fashion of going stark naked in these lately discovered nations is forced on them by the warm temperature of the air, as we say of the Indians and Moors, or whether it is the original way of mankind.

So Montaigne realizes how varied human customs on the wearing of clothes are and cites a number of examples. The general idea is that nature provides humans at birth with what they really need (under the most common conditions).

If we had been born with natural petticoats and breeches, there can be no doubt but that Nature would have armed with a thicker skin the parts she intended to expose to the beating of the seasons, as she has done for the fingertips and the soles of the feet. Why does this seem so hard to believe? Between my way of dressing and that of a peasant of my region I find far more distance than there is between his way and that of a man dressed only in his skin.

As with human customs in general, then, those related to clothing are based mostly on chance and happenstance than inflexible moral imperatives. However, Montaigne happens to have been a rock-ribbed conservative, and he believed that people should generally accept the customs and laws of their society, however arbitrary and capricious they might be. In large part this was probably because he saw the high cost in human life and suffering caused by the religious wars following the Reformation.

There’s always been this debate, which Shakespeare (Montaigne’s contemporary) put in Hamlet’s words:

Whether ‘tis nobler in the mind to suffer
The slings and arrows of outrageous fortune
Or to take arms against a sea of troubles
And by opposing end them?

That is, when is it worth the trouble to try to change unfairness and injustice instead of simply living with it? During the Enlightenment, long after Montaigne’s time, a different answer seemed persuasive.

All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

If people hadn’t realized that sometimes existing conditions are so wrong that they should be changed, the U. S. might still be a British colony, and the institution of slavery would still exist in the southern states of the U. S. Was it worth bloody wars to secure change in those cases? Probably.

The issue of the fairness and justice of existing laws that compel, in most cases, the wearing of clothes is far less momentous. But that doesn’t mean that laws based on arbitrary and capricious customs and moral rules should be immune to change.