The haste or the
prejudice which has generally refused them all but the most superficial
examination, must bear the blame of the unsatisfactory condition in
which we find the science of jurisprudence. The inquiries of the jurist
are in truth prosecuted much as inquiry in physics and physiology was
prosecuted before observation had taken the place of assumption.
Theories, plausible and comprehensive, but absolutely unverified, such
as the Law of Nature or the Social Compact, enjoy a universal
preference over sober research into the primitive history of society and
law; and they obscure the truth not only by diverting attention from the
only quarter in which it can be found, but by that most real and most
important influence which, when once entertained and believed in, they
are enabled to exercise on the later stages of jurisprudence.
The earliest notions connected with the conception, now so fully
developed, of a law or rule of life, are those contained in the Homeric
words "Themis" and "Themistes." "Themis," it is well known, appears
in the later Greek pantheon as the Goddess of Justice, but this is a
modern and much developed idea, and it is in a very different sense that
Themis is described in the Iliad as the assessor of Zeus. It is now
clearly seen by all trustworthy observers of the primitive condition of
mankind that, in the infancy of the race, men could only account for
sustained or periodically recurring action by supposing a personal agent.
Thus, the wind blowing was a person and of course a divine person; the
sun rising, culminating, and setting was a person and a divine person;
the earth yielding her increase was a person and divine. As, then, in the
physical world, so in the moral. When a king decided a dispute by a
sentence, the judgment was assumed to be the result of direct
inspiration. The divine agent, suggesting judicial awards to kings or to
gods, the greatest of kings, was Themis. The peculiarity of the
conception is brought out by the use of the plural. Themistes, Themises,
the plural of Themis, are the awards themselves, divinely dictated to the
judge. Kings are spoken of as if they had a store of "Themistes" ready
to hand for use; but it must be distinctly understood that they are not
laws, but judgments. "Zeus, or the human king on earth," says Mr.
Grote, in his History of Greece, "is not a lawmaker, but a judge." He is
provided with Themistes, but, consistently with the belief in their
emanation from above, they cannot be supposed to be connected by any
thread of principle; they are separate, isolated judgments.
Even in the Homeric poems, we can see that these ideas are transient.
Parities of circumstance were probably commoner in the simple
mechanism of ancient society than they are now, and in the succession
of similar cases awards are likely to follow and resemble each other.
Here we have the germ or rudiment of a Custom, a conception posterior
to that of Themistes or judgments. However strongly we, with our
modern associations, may be inclined to lay down à priori that the
notion of a Custom must precede that of a judicial sentence, and that a
judgment must affirm a Custom or punish its breach, it seems quite
certain that the historical order of the ideas is that in which I have
placed them. The Homeric word for a custom in the embryo is
sometimes "Themis" in the singular--more often "Dike," the meaning
of which visibly fluctuates between a "judgment" and a "custom" or
"usage." [Greek: Nomos], a Law, so great and famous a term in the
political vocabulary of the later Greek society, does not occur in
Homer.
This notion of a divine agency, suggesting the Themistes, and itself
impersonated in Themis, must be kept apart from other primitive
beliefs with which a superficial inquirer might confound it. The
conception of the Deity dictating an entire code or body of law, as in
the case of the Hindoo laws of Menu, seems to belong to a range of
ideas more recent and more advanced. "Themis" and "Themistes" are
much less remotely linked with that persuasion which clung so long
and so tenaciously to the human mind, of a divine influence underlying
and supporting every relation of life, every social institution. In early
law, and amid the rudiments of political thought, symptoms of this
belief meet us on all sides. A supernatural presidency is supposed to
consecrate and keep together all the cardinal institutions of those times,
the State, the Race, and the Family. Men, grouped together in the
different relations which those institutions imply, are bound to
celebrate periodically common rites and to offer common sacrifices;
and every now and then the same duty is even more significantly
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