The Origin and Growth of Law.
MOSES' WORK AS JUDGE AND PROPHET. -- Ex.18; 1-27; 33:5-11.

Parallel References.

Hist. Bible I, 198-203.
Prin. of Politics, Ch. VI.
Maine, Ancient Law.

Jehovah spake to Moses face to face, as a man speaketh unto his friend -- Ex.33: 11.

And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And they judged the people at all seasons: the hard cases they brought unto Moses, but every small matter they judged themselves -- Ex.18:25, 26.

Love is the fulfilling of the law. -- St. Paul.

Now this is the Law of the Jungle -- as old and as true as the sky;
And the Wolf that shall keep it may prosper, but the Wolf that shall break it must die.
As the creeper that girdles the tree-trunk the Law runneth forward and back --
For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack.
Now these are the Laws of the Jungle, and many and mighty are they;
But the head and the hoof of the Law and the haunch and the bump is "Obey!"
-- Kipling.

Nothing is that errs from law. -- Tennyson.

In vain we call old notions fudge,
And bend conventions to our dealing,
The Ten Commandments will not budge,
And stealing still continues stealing.
-- Lowell.

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).



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.



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?



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?



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.



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.



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.

Questions for Further Consideration.

Can you name any modern laws that you think have been framed in the interests of a special social class?

Do you think that the people of to-day are recreant in their respect for or adherence to law?

What do you consider to be the value of such institutions as those at West Point and Annapolis in their influence on the enforcement of law and discipline?

When we speak of "Government of the people, by the people, and for the people," whom exactly do we mean by "people"? Does the word have the same meaning in each of these phrases?

Is it ever right to violate a law of the land? Some people contend that an individual ought to break a human law, provided that it is contrary to divine law. What is divine law? Who decides? Shall the individual decide, or is that the duty of the community? Or of the clergy? Was it right for the Abolitionists to violate the provisions of the fugitive slave law? Were this handful of men, able and conscientious as they were, as likely to be right regarding the welfare of society as the large majority of citizens whose representatives had enacted the fugitive slave law? If a person believes our tariff laws to be unjust, is it right for him to smuggle goods?

Under what circumstances, if any, is it one's duty to disobey a law of the state? Would the fact that an individual believed it his duty to violate the law justify a judge in declining to punish him? Thoreau declined to pay a tax that he believed unjust and accepted his punishment, declaring that if he paid the penalty he might thus arouse public sentiment and secure the repeal of the law. Was John Brown justified in attempting illegally to free slaves by force of arms?

In Great Britain the House of Lords -- one of the law-making bodies -- is also the highest court of appeal, although the judicial business is mostly done by law lords specially appointed for that purpose. Ought the same men to make and interpret the law? Why?

Subjects for Further Study.

(1) Origin and Growth of Hebrew Law. Hastings, Dict. of Bible, III, 64-67; Ency. Bib., III, 2714-8; Kent, Israel's Laws and Legal Precedents, IV, 8-15.

(2) Growth of Primitive Law. Maine, Ancient Law, 109-165; Wilson, The State, 1-29.

(3) Judicial Decisions as a Factor in the Development of Modern Law. Prin. of Politics, Chap. VI, Ransom, Majority Rule and the Judiciary.

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