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could be exploited so as to assure the chief in his encroachments upon individual liberty, so long as the only inequalities between men were the work of nature, and these were not increased a hundred-fold by the concentration of power and wealth, there was no need for law, and the formidable paraphernalia of tribunals and ever-augmenting penalties to enforce it.
But as society became more and more divided into two hostile classes, one seeking to establish its domination, the other struggling to escape, the strife began. Now the conqueror was in a hurry to secure the results of his actions in a permanent form, he tried to place them beyond question, to make them holy and venerable by every means in his power. Law made its appearance under the sanction of the priest, and the warrior’s club was placed at its service. Its office was to render immutable such customs as were to the advantage of the dominant minority. Military authority undertook to ensure obedience. This new function was a fresh guarantee to the power of the warrior; now he had not only mere brute force at his service; he was the defender of law.
If law, however, presented nothing but a collection of prescriptions serviceable to rulers, it would find some difficulty in insuring acceptance and obedience. Well, the legislators confounded in one code the two currents of custom, of which we have just been speaking, the maxims which represent principles of morality and social union wrought out as a result of life in common, and the mandates, which are meant to ensure eternal existence to inequality. Customs, absolutely essential to the very being of society, are, in the code, cleverly intermingled with usages imposed by the ruling caste, and both claim equal respect from the crowd. “Do not kill,” says the code, and hastens to add, “And pay tithes to the priest.” “Do not steal,” says the code, and immediately after, “He who refuses to pay taxes, shall have his hand struck off.”
Such was law; and it has maintained its twofold character to this day. Its origin is the desire of the ruling class to give permanance to customs imposed by themselves for their own advantage. Its character is the skilful co-mingling of customs useful to society, customs which have no need of law to ensure
