If chosen men could never be alone,
In deep mid-silence, open-doored with God
No greatness ever had been dreamed or done.
These roots bear up Dominion: Knowledge, Will,—
These twain are strong, but stronger yet the third,—
Obedience,—'tis the great tap-root that still,
Knit round the rock of Duty, is not stirred,
Though Heaven-loosed tempests spend their utmost skill.
—Lowell (The Washers of the Shroud).
I.
THE NEEDS THAT GIVE RISE TO LAW.
Kipling's Law of the Jungle, in which he lays down the principles by which the wolf pack secured united action in its hunting, names the rules that apply almost universally to peoples in the savage stage of society. According to the researches of the best anthropologists, savages live in very loosely organized groups, with no permanent ruler, no regular family law. Each separate group has its totem, its general rules with reference to the marriage relation, to hunting and fishing, to shelter and protection. Practically there are no regular laws. The rules fixed by custom deal primarily with the marriage relation and with the securing of food and shelter. They are largely negative. If a member of the group has met with a misfortune in a certain by-path or from eating certain food or in other ways, by the action of the leader of his group that path or that food becomes taboo, and from that time on it is forbidden. The rules seem generally to be largely the product of instinct or of experience, without any law making, and they are enforced almost as instinctively by the common consent of the people.
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.