If these motives are the materials with which the administration of justice has to deal, the legal motive which has invariably controlled the courts is something quite different. The courts in the administration of law have invariably sought, above all else, to achieve consistency. It is an ancient maxim of English law that "it is better that the law should be certain than that the law should be just."[277]
The conception implicit in the law is that the rule laid down in one case must apply in every similar case. In the effort to preserve this consistency in a constantly increasing variety of cases the courts have been driven to the formulation of principles, increasingly general and abstract, to multiply distinctions and subtleties, and to operate with legal fictions. All this effort to make the law a rationally consistent system was itself inconsistent with the conception that law, like religion, had a natural history and was involved, like language, in a process of growth and decay. It is only in recent years that comparative jurisprudence has found its way into the law schools. Although there is a vast literature upon the subject of the history of the law, Maine's Ancient Law, published in 1861, is still the classic work in this field in English.
More recently there has sprung up a school of "legal ethnology." The purpose of these studies is not to trace the historical development, of the law, but to seek in the forms in use in isolated and primitive societies materials which will reveal, in their more elementary expressions, motives and practices that are common to legal institutions of every people. In the Preface to a recent volume of Select Readings on the Origin and Development of Legal Institutions, the editors venture the statement, in justification of the materials from sociology that these volumes include, that "contrary, perhaps, to legal tradition, the law itself is only a social phenomenon and not to be understood in detachment from human uses, necessities and forces from which it arises." Justice Holmes's characterization of law as "a great anthropological document" seems to support that position.
Law in its origin is related to religion. The first public law was that which enforced the religious taboos, and the ceremonial purifications and expiations were intended to protect the community from the divine punishment for any involuntary disrespect or neglect of the rites due the gods which were the first crimes to be punished by the community as a whole, and for the reason that failure to punish or expiate them would bring disaster upon the community as a whole.
Maine says that the earliest conceptions of law or a rule of life among the Greeks are contained in the Homeric words Themis and Themistes.
When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. The divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was Themis. The peculiarity of the conception is brought out by the use of the plural. Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judge. Kings are spoken of as if they had a store of "Themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "Zeus, or the human king on earth," says Mr. Grote, in his History of Greece, "is not a law-maker, but a judge." He is provided with Themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments.[278]
It is only in recent times, with the gradual separation of the function of the church and the state, that legal institutions have acquired a character wholly secular. Within the areas of social life that are represented on the one hand by religion and on the other by law are included all the sanctions and the processes by which society maintains its authority and imposes its will upon its individual members.[279]