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?
III.
THE AUTHORITY UNDERLYING ALL LAW.
Back of all laws and rules, as the fundamental consideration, whether consciously expressed in laws or carried out instinctively, lies the welfare of society. Among the wolves the pack that is best disciplined by the strongest and most successful leader is the one that survives. In the earlier savage groups the rules which guided united action grew up as a result of successful experience in securing food and warding off enemies. Among them the less disciplined, the less intelligently directed groups perish.
Through his fear of the unknown, stimulated by the terrible vindications of nature's laws, when poison and pestilence and storms and floods do their deadly work, the savage feels the presence of unknown forces that he calls gods, and he thus gives to his rules of action the sanction of divinity. And as society develops through the pastoral, agricultural and industrial stages into the tribe and state, with the development of religion and the growing sense of right and of responsibility to one's fellow men, this religious sanction of the law still abides. In the earlier days the sanction was due to fear of the vengeance of the gods. In later society it is the sense of right and justice and love for one's fellow men, springing from the firm belief in the divine creation and direction of the universe and in God's care for men.
But as this sense of fear or right or justice or love, associated with a Being felt to be divine, is not universal, inasmuch as many members of society are found ready to act selfishly, taking the law into their own hands, force is needed in all stages of society to put the rules and laws into effect. With every law, as Austin says, must go a penalty. But as society grows more and more humane the sense of obligation of each individual for the welfare of his fellows grows, until in the best society laws are made and obeyed by most citizens, not from a sense of fear of punishment, but mainly out of goodwill to others. A sense of justice prevails and the sanction of law becomes not so much fear of the penalty imposed, as the moral and religious sense of the individual and of society. Why, for example, do you obey the law against stealing?
IV.
MOSES' RELATION TO THE OLD TESTAMENT LAWS.
The Hebrew laws given in the Old Testament are generally known as the laws of Moses, and the assumption of many readers in earlier years has been that the different codes were practically formulated by Moses himself. The subsequent study of the Old Testament long ago suggested to many that this view may be mistaken. The oldest records of his work and the fact that, as creator of the Hebrew nation after the Exodus and as leader and prophet be rendered important judicial decisions, have well justified the belief that he was the real founder of what is called the Mosaic Law. As stated in Exodus 18, he did actually formulate the principles by which decisions were made by the rulers whom he appointed over thousands and over hundreds, fifties and tens. He may have even put into form the principles found in the earliest decalogues. Moreover, as the Israelites in their later history were led to formulate new rules of action, they based these upon the principles of justice, religion and civil equality found in the earlier decalogues. While the specific rules of living must have changed materially, as the Israelites changed their habits of living from those of wanderers in the wilderness to those adapted to their early settlements in Canaan and afterward to the settled conditions under the monarchy, they would still base their laws upon these earlier principles. Hence it was not unnatural to ascribe the origin of these laws to Moses, nor is it to-day inaccurate to speak of them as the Mosaic code, even though they may have been put into their present form at different periods remote from one another, and by rulers, prophets and priests whose occupations and attitude toward life were widely different. Back of practically all these laws are the fundamental beliefs that the Israelites are the people chosen of God, that to him they owe allegiance and that from him they derive, in principle at least, the laws under which they live.