THE DEVELOPMENT OF MODERN LAW.
Not merely the Hebrews, but practically all ancient nations ascribe the origin of their laws either to a deity or to some great ancestral hero. As already noted, the code of Hammurabi is represented as having been given to him directly by the god Shamash. In the early days of Greek history, the laws of Solon and Draco were formulated. In India we find the laws of Manu, in China the teachings of Confucius, and so on throughout all of the great nations. In some instances, doubtless, many of the laws were actually formulated under the direction of the person to whom they are ascribed; but in many others, as perhaps in the case of the Mosaic code, there was some great judge or king under whose direction certain principles were laid down and simple laws or precedents established, and as a result all later developments were ascribed to him.
In modern times, when legislative bodies are found in limited monarchies as well as in republics, the methods of legislation are necessarily different. Although chosen bodies of men come together to legislate for the benefit of society, as represented by the state, there is still a normal tendency for the ruling class to feel that it is to a great extent the state, and it does not forget its own needs. This class legislation was doubtless existent to a certain extent even when the laws, supposed to be of divine origin, were formulated by prophets and priests, for the real public character of the laws was dependent primarily upon the unselfish beliefs, social and religious, of the writers, whether kings or priests. No one is able to free himself entirely from the influence of class prejudice.
Like the legislatures the courts even are also the product of their times, though naturally conservative. No law can long exactly fit changing conditions. The judge must adapt a law made by one generation to the needs of the next. In so doing he bends it to suit his times, and to further the welfare of his state.
If aeroplanes carrying goods from Pennsylvania to New York over the
State of New Jersey let them fall and damage the property of a
resident of New Jersey, can our courts invoke the Interstate
Commerce Law made before aeroplanes were invented?
And yet there has been throughout the individual history of each nation a gradual improvement in the living conditions of the masses of people, even in the tribal state. As it proved more profitable to preserve a worker than to kill him, captives in war were not slain, but enslaved. As society became more settled, the custom of personally avenging one's wrong by slaying an enemy was modified. Cities of refuge were established, where innocent victims might escape the avengers. All down through the ages there has been a growing tendency to adapt the punishment to the crime, to temper justice with mercy, to realize that the aim of all law is not vengeance or punishment, but the promotion of the best interests of society through the wise administration of justice.
VI.
THE ATTITUDE OP THE CITIZENS TOWARD THE LAW.
Among savages, as has been said, there is no formulation of law. There is the instinct of the individual to preserve his own life, and there are rules that must be followed if the people are to survive. As has been truly said: "The love of justice is simply in the majority of men the fear of suffering injustice." The instinct of preservation and sheer necessity compel the people almost unconsciously to follow the rules of their leader.
In most patriarchal societies the fear of the god of the tribe, the overpowering influence of custom and the unswerving directness of the punishment of the man who violates it tend to prevent the development of individuality and of independent thinking; and the normal attitude of practically every person is to obey the customs and the laws, although often those laws leave to the individual a range of action not found in later civilized states. But as the sense of right and justice and the desire to promote the public welfare grow, individualism grows also. Each individual, thrown upon his own resources, learns to think and question and judge. In democratic states he learns to take upon himself the responsibility for his acts, and at length the view becomes prevalent that law exists for the benefit of society. The individual, in judging himself and his attitude toward society, feels that the law must be obeyed because obedience promotes the public welfare. Even when he believes that a law is unwise, or even unjust, he hesitates to violate it, not only because he might be punished therefor, but primarily because it has become wrong, according to his conscience, to violate a law that has been adopted by the representatives of his fellow citizens as just and beneficial. Thus the individual, in later even more than in earlier times, obeys the laws not merely from selfish, but from social and religious motives.