PAPER 70: Section 11.
Laws And Courts
P796:7, 70:11.1
It is just as difficult to draw sharp distinctions between mores and laws
as to indicate exactly when, at the dawning, night is succeeded by day. Mores
are laws and police regulations in the making. When long established, the
undefined mores tend to crystallize into precise laws, concrete regulations,
and well-defined social conventions.
P796:8, 70:11.2
Law is always at first negative and
prohibitive; in advancing civilizations
it becomes increasingly positive and directive. Early society operated negatively,
granting the individual the right to live by imposing upon all others the
command, "you shall not kill." Every grant of rights or liberty to the individual
involves curtailment of the liberties of all others, and this is effected
by the taboo, primitive law. The whole idea of the taboo is inherently negative,
for primitive society was wholly negative in its organization, and the early
administration of justice consisted in the enforcement of the taboos. But
originally these laws applied only to fellow tribesmen, as is illustrated
by the later-day Hebrews, who had a different code of ethics for dealing with
the gentiles.
P797:1, 70:11.3
The oath originated in the days of Dalamatia in an effort to render testimony
more truthful. Such oaths consisted in pronouncing a curse upon oneself. Formerly
no individual would testify against his native group.
P797:2, 70:11.4
Crime was an assault upon the tribal mores, sin was the transgression of those
taboos which enjoyed ghost sanction, and there was long confusion due to the
failure to segregate crime and sin.
P797:3, 70:11.5
Self-interest established the taboo on killing, society sanctified it as traditional
mores, while religion consecrated the custom as moral law, and thus did all
three conspire in rendering human life more safe and sacred. Society could
not have held together during early times had not rights had the sanction
of religion; superstition was the moral and social police force of the long
evolutionary ages. The ancients all claimed that their olden laws, the taboos,
had been given to their ancestors by the gods.
P797:4, 70:11.6
Law is a codified record of long human experience, public opinion crystallized
and legalized. The mores were the raw material of accumulated experience out
of which later ruling minds formulated the written laws. The ancient judge
had no laws. When he handed down a decision, he simply said, "It is the custom."
P797:5, 70:11.7
Reference to precedent in court decisions represents the effort of judges
to adapt written laws to the changing conditions of society. This provides
for progressive adaptation to altering social conditions combined with the
impressiveness of traditional continuity.
P797:6, 70:11.8
Property disputes were handled in many ways, such as:
- By destroying the disputed property.
- By force -- the contestants fought it out.
- By arbitration -- a third party decided.
- By appeal to the elders -- later to the courts.
P797:11, 70:11.9 The first courts were regulated fistic encounters; the judges were merely umpires or referees. They saw to it that the fight was carried on according to approved rules. On entering a court combat, each party made a deposit with the judge to pay the costs and fine after one had been defeated by the other. "Might was still right." Later on, verbal arguments were substituted for physical blows.
P797:12, 70:11.10 The whole idea of primitive justice was not so much to be fair as to dispose of the contest and thus prevent public disorder and private violence. But primitive man did not so much resent what would now be regarded as an injustice; it was taken for granted that those who had power would use it selfishly. Nevertheless, the status of any civilization may be very accurately determined by the thoroughness and equity of its courts and by the integrity of its judges.