Chapter 8

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?

III.

THE AUTHORITY UNDERLYING ALL LAW.

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?

IV.

MOSES' RELATION TO THE OLD TESTAMENT LAWS.

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.

V.

THE DEVELOPMENT OF MODERN LAW.

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.

VI.

THE ATTITUDE OP THE CITIZENS TOWARD THE LAW.

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_.

STUDY X

THE FOUNDATIONS OF GOOD CITIZENSHIP.

THE TEN COMMANDMENTS.--Ex. 20:1-17.

_Parallel Readings_.

_Hist. Bible_ I, 194-198. _Prin. of Politics_, Chap. II. Lowell, _Essay on "Democracy."

Thou shalt have no other gods before me. Thou shalt not make unto thee a graven image. Thou shalt not take the name of Jehovah thy God in vain. Remember the sabbath day, to keep it holy. Honor thy father and thy mother. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor's house.--_Ex. 20:3-17_.

If ye know my commandments, happy are ye if ye do them.--Jesus.

Wherewithal shall I come before Jehovah, and bow myself before the High God? . . . He hath showed thee, Oh man, what is good; and what doth Jehovah require of thee but to do justly, and to love kindness, and to walk humbly with thy God?--Micah 6:6, 8.

Most religions are meant to be straight lines connecting two points--God and man. But Christianity has three points--God, man, and his brother--with two lines to make a right angle.--_Maltbie D. Babcock_.

So many prayers, so many creeds, So many paths that wind and wind, When just the art of being kind Is all the sad world needs. --Eva Wheeler Wilcox.

I.

THE HISTORY OF THE PROPHETIC DECALOGUE.

The decalogues of Exodus 20-23 clearly represent the earliest canon of the Old Testament. These are intended to define clearly the obligations of the nation to Jehovah, and to place these obligations before the people so definitely that they would be understood and met. As the term "decalogue," that is "ten words," indicates, the Biblical decalogue originally contained ten brief sententious commands, easily memorized even by children. Each of the decalogues is divided into two groups of five laws or pentads. This division of five and ten was without reasonable doubt intended to aid the memory by associating each law with a finger or thumb of the two hands. Exodus 20-23 and its parallels in Deuteronomy contain ten decalogues, that is a decalogue of decalogues, suggesting that originally a decalogue was associated with each of the fingers and thumbs of the two hands even as were the individual words or commands. This system of mnemonics was useful in teaching a child nation. It is still useful to-day. It is important to impress upon the child in this concrete way certain of the fundamental obligations to God and man. The form of the ten commandments in part explains the commanding place which they still hold in religious education throughout Christendom.

The Biblical accounts of the two decalogues in Exodus 20 and 34 vary in details. The early Judean prophetic narrative in Exodus 34 states that these commands were inscribed by Moses himself on two stone tablets. In the later versions of the story Jehovah inscribes them with his own fingers on the two tablets which he gave to Moses. That the older decalogue was written on two tablets and set up in the temple of Solomon is exceedingly probable, for by the days of the United Kingdom the Hebrews were beginning to become acquainted with the art of writing and therefore could read the laws in written form. The recently discovered code of Hammurabi, which comes from the twentieth century B.C., was inscribed in parallel columns on a stone monument. In the epilogue to this wonderful code the king states: "By the order of Shamash, the judge supreme of heaven and earth, that judgment may shine in the land, I set up a bas-relief to preserve my likeness in the great temple that I love, to commemorate my name forever in gratitude. The oppressed who has a suit to prosecute may come before my image, that of a righteous king, and read my inscription and understand my precious words and let my stele elucidate his case. Let him see the law he seeks, and may he draw in his breath and say: 'This Hammurabi was to his people like the father that begot them!'" Thus this devout king of ancient Babylonia graphically defines the motive which, at a later period, led Israel's spiritual leaders to set before the people those principles which made for the welfare both of the nation and of the individual. Each was keenly conscious that the laws which brought social and spiritual health to mankind emanated from the divine power that was guiding the destinies of men.

Hebrew tradition has described in a great variety of narratives the way in which God made known his will to the people. The scene in each case was Mount Sinai, which the ancient Hebrews as well as the Kenites regarded as Jehovah's abode. In the early Judean version, as some writers classify the accounts, Moses alone ascends the mountain, while the people are forbidden to approach. In the Northern Israelite version, the people approach, but being terrified by the thunder and lightnings they request Moses to receive for them the divine message. This later version implies that a raging thunder storm shrouded the sacred mountain, while the early Judean and late priestly narratives apparently suggest an active volcano.

The element common to all these accounts is that under the direction of their prophetic leader, Moses, a solemn covenant was established between the nation and Jehovah, and that the obligations of the people were defined in the decalogue with its ten short commands. The problem is, however, complicated by the presence of two decalogues, one now preserved in Exodus 34 and the other, the familiar ten commandments of Exodus 20. Both agree in emphasizing as primary the nation's obligation to be loyal to Jehovah. The decalogue in Exodus 34, however, goes on to describe in succeeding laws the ways in which the nation may show its loyalty. This was through the observation of certain ceremonial customs and especially the great annual feasts. Did most ancient peoples show their loyalty to the gods by their lives and deeds or by the ceremonies of the ritual and the offerings which they brought to the altars? The first great prophet Amos declared that Jehovah hated and despised feasts and ceremonies unless accompanied by deeds of justice and mercy.

The decalogue in Exodus 34 may well represent the original commands which Moses laid upon the nation, but the higher moral sense of later editors has truly recognized the superiority of the ethical commands of the familiar decalogue in Exodus 20 and given it the commanding place which it richly deserves. (For a probable literary history of this decalogue see _Hist. Bible_ I, 194-5.) The two decalogues of Exodus 20 and 34 are not duplicates the one of the other, but rather supplement each other. The one defines the obligation of the nation, the other of the individual. The Hebrews long continued to retain in their homes the family images inherited from their Semitic ancestors. Not until the days of Amos and Isaiah did the prophets begin to protest against the calves or bulls and the cherubim in the sanctuaries of Northern Israel, and even in the temple at Jerusalem. Hence the second command, "Thou shalt not make for thyself any graven image," some believe comes from a period centuries later than Moses. Possibly, as in Exodus 34:17, it originally read "molten image" and referred to foreign idols. If so, it may come in this older form from Moses. The tenth command which places the emphasis on the motive rather than the act also suggests a maturer age; but with these possible exceptions there is good reason for believing that the spirit and teaching of Moses are embodied in this noble decalogue.

In what respects does the version in Deuteronomy 5 differ from that in Exodus 20? (_Hist. Bible_ I, 195.) Which is probably the older version? What later explanations and exhortations have been added to the original ten words in Exodus 20? In Deuteronomy 5? What was the object of these additions? Are they of real value? Is it profitable to teach them to children to-day?

II.

OBLIGATIONS OF THE INDIVIDUAL TO GOD.

Into what two groups do the ten words in Exodus 20 fall? And what is the theme of each? Is there a real difference between the command of Exodus 34, "Thou shalt worship no other gods" and that of Exodus 20, "Thou shall have no other gods before me"? Did the Hebrews as a matter of fact tolerate the worship of other gods in their midst centuries after the days of Moses? May the Hebrews have originally interpreted the command of Exodus 20 as a demand that Jehovah be given the first place in the worship and faith of Israel? How did later prophets like Elijah and Isaiah interpret it? (See I Kings 18:21 and Is. 6:1-8; 8:13.) The older command in Exodus 34, "Thou shall make thee no molten gods," was probably intended to guard the Israelites from imitating the religious customs of their heathen neighbors, such as the Egyptians and the Moabites. The command to make no graven image was, it seems, directed not against the public idols but against the private images. These were usually made of wood and were cherished in many a Hebrew family, as for example, that of Jacob (cf. the story of his flight from Laban, Gen. 31) or of David (I Sam. 19). The spirit of the law is truly interpreted by the later priestly commentator who places completely under the ban all attempts visibly to represent the Deity. Is the spirit of this command disregarded by the modern Greek church? In certain parts of the Roman Catholic world? In any phases of Protestant worship?

How is the third command interpreted to-day? The exact meaning of the original Hebrew is not entirely clear. It may be interpreted literally: "Thou shall not invoke the name of Jehovah, thy God, in vain." The interpretation turns on the meaning of the phrase, in vain. This admits of four different translations: (1) Purposelessly, and therefore needlessly or irreverently; (2) for destruction, as when a man calls down a curse upon another; (3) for nothing, that is in swearing to what is not true; and (4) in the practice of sorcery or witchcraft, for this word was frequently used by the Hebrews as a scornful designation of heathen abominations. Is it possible that the original command was intended to guard against each of these evils? If so, it broadens and deepens its modern application. Its fundamental idea is evidently reverence and sincerity.