Thus, the State is indeed the ultimate source of all the various branches of the legal system. So far as the fundamental elements of its own Constitution are concerned, however, it is really itself a product of _custom_, if we take this term in its broadest sense, as signifying an historically developed order of social life which has not yet come under the control of political authority. The course of development is the very opposite of that which rationalistic theories have taught, ever since the time of the Sophists, concerning the origin of the State. These theories maintain that the legal system originated in connection with the State, and that it then acquired an application to the separate departments of life. The reverse is true. It is with the determination of the rights of individuals and with the settlement of the controversies arising from these rights that the legal power of the State takes its rise. It is strengthened and extended when the custom of personal retribution comes to be superseded by penal law. Last of all comes the systematic formulation of the political Constitution itself. The latter, however, is never more than a _development_; it is not a creation in the proper sense of the word. Even such States as the United States of North America and the new German Empire were not created by lawgivers, but were only organized by them in respect to details. The State as such is always a product of history, and so it must ever remain. Every legal system presupposes the power of a State. Hence the latter can never itself originate in an act of legislation, but can only transform itself into a legal order after it has once arisen.
At first glance it may seem presumptuous even to raise the question as to how gods originated. Have they not always existed? one is inclined to ask. As a matter of fact, this is the opinion of most historians, particularly of historians of religion. They hold that the belief in gods is underived. Degenerate forms may arise, the belief may at times even disappear altogether or be displaced by a crude belief in magic and demons, but it itself can in no wise have been developed from anything else, for it was possessed by mankind from the very beginning. Were it true that the belief in gods represents an original possession of mankind, our question concerning the origin of gods would be invalidated. The assumption, however, is disproved by the facts of ethnology. There are peoples without gods. True, there are no peoples without some sort of supersensuous beings. Nevertheless, to call all such beings 'gods'--beings, for example, such as sickness-demons or the demons which leave the corpse and threaten the living--would appear to be a wholly unwarranted extension of the conception of deity. Unbiased observation goes to show that there are no peoples without certain conceptions that may be regarded as precursors of the later god-ideas. Nevertheless, there can be no doubt that there are some peoples without gods. The Veddahs of Ceylon, the so-called nature-Semangs and Senoi of Malacca, the natives of Australia, and many other peoples of nature as well, possess no gods, in our sense of the word. Because all of these primitive peoples interpret certain natural phenomena--such as clouds, winds, and stars--in an anthropomorphic fashion, it has been attempted time and again to establish the presence of the god-idea of higher religions. Such attempts, however, may be straightway characterized as a play with superficial analogies in which no thought whatsoever is taken of the real content of the god-conception.