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 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?

Twelve Studies on the Making of a Nation: The Beginnings of Israel's History · 第 132 / 182 题