II.
THE GROWTH OF CUSTOMARY LAW.
As this loosely associated group condenses into the tribe, all the members of which regard themselves as descended from a common ancestor, the organization becomes much more definite under a patriarchal ruler. Soon through his activities these almost instinctive habits, guided by rules, assume the nature of customs that have a sanction, often of religion, practically always of enforcement through the patriarch. No better illustration of the crystallization of customs into laws can be found than that given in Exodus 18:1-27 (Hist. Bible, I, 198-202). Moses sat all day long as judge to decide cases for the people until his practical-minded father-in-law, Jethro, seeing the waste of time and energy of the ruler upon whom the welfare of the tribe depended, proposed a wise plan. He advised that, instead of rendering decisions regarding each individual case, Moses should formulate the principles and leave their application to minor judges appointed by himself as rulers over thousands and over hundreds and fifties and tens. In modern days the law-making body is distinct from the judicial. Is there any reason why the judge should not be the maker of the law he interprets?
Doubtless many of the customs thus formulated by Moses had come down through the preceding ages from the Babylonian and common Semitic ancestors of the Hebrews. The most striking example of the pre-Mosaic formulation of custom into law under the sanction of the deity is found in the so-called code of Hammurabi, which comes from about 1900 B.C. At the top of the stele which records these laws this enlightened king depicted himself in a bas-relief as receiving them from the sun god, Shamash. Hammurabi looked upon himself as a shepherd chosen by the gods to care for his people. It was his duty to see "that the great should not oppress the weak, to counsel the widow and orphan, to render judgment and decide the decisions of the land, and to succor the injured," in order that "by the command of Shamash, the judge supreme of heaven and earth, justice might shine in the land." Many of the principles laid down by him are also found among the laws attributed to Moses which were afterward codified in the early decalogues.
At times, though rarely among the Hebrews, we may study custom in the making, as when in a new situation a ruler renders a decision which henceforth becomes a law. Thus David, dividing the spoil after his victory over the Amalekites, established a precedent that henceforth had binding force upon his followers (I Sam. 30); but in the majority of such cases the ruler, even when be establishes new precedents, represents himself as simply interpreting ancient custom.
As society becomes more and more complex and the interests of individuals and classes in society clash, besides the judges we find legislatures making new rules in the form of law. In the earlier communities practically all law relates to the preservation of life and of the tribe. Later, as the tribe enters the pastoral state, private property is established and laws for its care are made. Still later, with the development of a higher civilization and with the individual conscience stimulating men to care for the welfare not merely of their family, but of their nation, legislation considers primarily the welfare of society. Yet, as one of our great judges has lately explained, in practically all stages of society, whenever the population becomes numerous and business is so developed that we may recognize different classes in a community, legislation has been primarily in the interests of a ruling class, often at the expense of the other classes. This principle is illustrated by certain of the later Jewish ceremonial laws that brought to the priests a large income at the expense of the people. Many laws in Europe and in the United States to-day have been made clearly in the interests of certain classes in society. Can you think of some?