The transition from custom to law reflects the joint influence of _two_ factors, which, particularly at the outset, were themselves closely connected. The first of these factors consists in the rise of firmly established forms of rulership, which are indicative also of the transition leading to _States_; the other is the _religious_ sanction which was attached to those regulations that were singled out by the law from the broader field of custom. Both factors indicate that the heroic age properly marks the origin of the legal system, even though it be true that all such changes are gradual and that occasional beginnings of the legal system, therefore, may be found at an earlier period, in connection with the very ancient institution of chieftainship. As regards the external social organization and the religious life of the heroic age, these are characterized, respectively, by the development of strict forms of rulership and by the origin of a deity cult. Each of these social phenomena reinforces the other. The kingdom of the gods was but the terrestrial State projected into an ideal sphere. No less was the development of the legal system dependent upon the union of the two factors. Neither the external force of the political authority governing the individual nor the inner constraint of religious duty sufficed in itself to establish the tremendous power characteristic of the legal system from early times on. It is true that, at a later period, the feeling that law represents a religious duty gave way to the moral law of conscience. The latter, however, itself owes its origin to the increasing influence of the political authority which is at the basis of the legal system; moreover, as an inner motive reinforcing the external compulsion of the law, it continued to preserve a similarity to the religious source from which it sprang. True, a significant change occurred. During the early stages of legal development, the weight of emphasis fell on the religious aspect of law, whereas it later more and more shifted to the political side. At first, the entire body of law was regarded as having been given directly by the deity, as was the case, for example, with the Ten Commandments of Moses and with the Israelitic Priests' Code, which clothes even the most external modes of life in the garb of religious commands. Sometimes a twofold credit is given for the introduction of the legal system, in that the one who wields the power is regarded as administering justice both in his own name and as commissioned by the gods. An illustration of this is the Babylonian code of Hammurabi. It is, naturally, when the priests wield the authority that the laws are most apt to be ascribed exclusively to the gods. The tendency, on the other hand, to give the ruler a certain amount of credit for legislative enactments, is greatest whenever the ruler occupies also the position of chief priest. The direct impetus to such a union of priesthood and political authority is to be found in the rise of the legal system itself, for this resulted from a fusion of religious and political motives. The idea that the earthly ruler is the terrestrial representative of a world-governing deity, or, as occurs in extreme cases, that he is the world-governing deity himself, is, therefore, a conception that is closely bound up with the rise of political society and that receives pregnant expression in the earliest forms of the legal system. No trace of such a conception was associated with the chiefs of the totemic period. Their position was entirely distinct from that of the magicians, the shamans, and the medicine-men, who were the original representatives of the priestly class that later arose in the age of deity cults. But it is for this very reason that the mandates of the totemic chief cannot be said as yet to have constituted a legal system; they were commands which were given as occasion demanded, and which were determined partly by the will of the chief and partly by transmitted customs. Secular and religious motives are to be found in similar combination elsewhere, even among tribes that are usually regarded as peoples of nature, as, for example, particularly those of Polynesia. In cases such as these, however, there are present also the beginnings of a legal system, as well as its correlates, the fundamentals of a political organization and of a deity cult. Whether these are the remnants of a culture brought by these migratory peoples from their original Asiatic home, or whether they represent an independently achieved culture that has fallen into decay, we need not here inquire.
Villages Review
Elements of Folk Psychology — Part 194
2026-11-15 08:56:03 · The Daily Ledger
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