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.
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