And it is a _social_ control--not an exercise of brute force or a mere
terrorizing by ghosts. For the chief or judge generally wins his
authority by his powerful service to his tribesmen. A Gideon or Barak or
Ehud or Jephthah judged Israel because he had delivered them. "Three
things, if possessed by a man, make him fit to be a chief of kindred:
That he should speak on behalf of his kin and be listened to, that he
should fight on behalf of his kin and be feared, and that he should be
security on behalf of his kin and be accepted."[32] If, as is often the
case, the king or judge or chief regards himself as acting by divine
right, the authority is still _within the group_. It is the group
judging itself.
In its _standards_ this primitive court is naturally on the level of
customary morality, of which it is an agent. There is usually neither
the conception of a general principle of justice (our Common Law), nor
of a positive law enacted as the express will of the people. At first
the judge or ruler may not act by any fixed law except that of upholding
the customs. Each decision is then a special case. A step in advance is
found when the heads or elders or priests of the tribe decide cases, not
independently of all others, but in accordance with certain precedents
or customs. A legal tradition is thus established, which, however
imperfect, is likely to be more impartial than the arbitrary caprice of
the moment, influenced as such special decisions are likely to be by the
rank or power of the parties concerned.[33] A law of precedents or
tradition is thus the normal method at this level. The progress toward a
more rational standard belongs under the next chapter, but it is
interesting to note that even at an early age the myths show a
conception of a divine judge who is righteous, and a divine judgment
which is ideal. Rhadamanthus is an embodiment of the demand for justice
which human collisions and decisions awakened.
The conscious authority of the group is also evoked in the case of feuds
or disputes between its members. The case of the blood feud, indeed,
might well be treated as belonging under war and international law
rather than as a case of private conflict. For so far as the members of
the victim's clan are concerned, it is a case of war. It is a patriotic
duty of every kinsman to avenge the shed blood. The groups concerned
were smaller than modern nations which go to war for similar reasons,
but the principle is the same. The chief difference in favor of modern
international wars is that since the groups are larger they do not fight
so often and require a more serious consideration of the possibility of
peaceable adjustment. Orestes and Hamlet feel it a sacred duty to avenge
their fathers' murders.
Public-domain text, read in full here on John Shaqi.
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