² Ibid., pp. 311–313.

³ Ibid., pp. 321–322.

⁴ This Review, vol. 23, p. 297Google Scholar.

⁵ Malinowski, B., Argonauts of the Western Pacific, pp. 8, 116, 157, 160Google Scholar; “Economic Aspects of the Intichiuma Ceremonies,” in Festschrift Westermarck (1912); Powdermaker, H.,“Leadership in Central and Southern Australia,” Economica (June, 1928), p. 177Google Scholar.

⁶ Professor A. M. Tozzer has emphasized the importance of the “crisis” as a factor in developing leadership. Social Origins and Continuities (1925), pp. 53, 213Google Scholar.

⁷ This emphasis, which displays itself in the executive and legislative activity of a government, is reversed in its purely judicial activity. See Freund, Standards of American Legislation, ch. ii, and my Administrative Justice and the Supremacy of Law (1927), pp. 23–31Google Scholar.

⁸ This is true even of animals. The tendency of sheep to follow a bell-wether is well known. See also Darwin, , Descent of Man (N. Y., 1903), p. 105Google Scholar. “What is the beginning of the migrations and construction-work of ant-hills? Is it by a common impulse, instinctive, spontaneous, springing from all the associates contemporaneously under the pressure of external circumstances submitted to at the same time by all? No,—an individual detaches itself, begins to work by itself. …. Imitation-contagion does the rest.” Tarde, , Lois de l'Iimitation, p. 4Google Scholar, quoting Espinas, Sociétés Animales.

⁹ “It is the individual who initiates, who invents, new ways of action.” Tozzer, op. cit., p. 53.

¹⁰ Myres, J. L., The Political Ideas of the Greeks (N. Y., 1927), pp. 139–150Google Scholar.

¹¹ Howitt gives instances of such informal leadership. See Native Tribes of Southeastern Australia, pp. 301, 303, 304, 316, 319, 320.

¹² At the lowest levels of culture, as among the Yahgan of Tierra del Fuego, the small family groups dwell separately without any organized connection with a larger community. “The only fixed authority recognized is that of a father over his family.” Hartland, , Primitive Law, pp. 11–12Google Scholar, quoting Bulletin of Bureau of Ethnology, lxiii, pp. 168 ffGoogle Scholar. Such independent family groups are found among more advanced nomadic peoples, e.g. the early Semites, and have often led to a high development of the principle of paternal authority.

¹³ On authority within the smaller group, see Hobhouse, , Morals in Evolution, pp. 48, 79–81, 102–104Google Scholar, citing numerous references for specific peoples. When the smaller units were combined into larger groups, the process was often aided by the fiction of common blood-relationship. Meyer, E., Histoire de l'Antiquitié, iii, 63–64Google Scholar. For the present discussion, the special problems raised by “matrilineal” societies are not important.

¹⁴ Lowie, , Primitive Society, pp. 360–361Google Scholar; Malinowski, , Argonauts of the Western Pacific, pp. 37–41Google Scholar.

¹⁵ Ford, , Natural History of the State, pp. 92–102Google Scholar, and authorities there cited, especially Payne, E. J., History of the New World called America, ii, pp. 199–202Google Scholar; Clifford, W. K., Lectures and Essays (2d ed., London, 1886), p. 291Google Scholar.

¹⁶ Hobhouse, op cit., pp. 326–330; Hartland, , Primitive Law, pp. 97–103Google Scholar.

¹⁷ Howitt, op. cit, pp. 298, 301, 313, 321.

¹⁸ Howitt, op. cit., pp. 323–325, 394, 662; Lowie, op. cit., p. 361.

¹⁹ For the concentration of authority in the hands of a tribal chief, due to the emergence of a strong personality, see account of the career of Jalina-piramurana among the Dieri. Lowie, , Primitive Society, pp. 359–360Google Scholar. Such a position may easily become hereditary. Howitt, op. cit., pp. 304, 305–306, 308, 310, 313, 316, 318.

²⁰ The qualifications resulting in leadership are various—age, reputation for skill in magic, military prowess, descent from a particular family. Instances of all these, and of various combinations of them, are found among the Australians. Ibid., pp. 297, 304, 315, 316 (age); pp. 301–303, 313 (magic); pp. 302, 303, 314, 316 (prowess in war); pp. 301, 302, 308, 317 (combined qualifications). See Powdermaker, op. cit., supra note 5. Among other peoples, wealth is a qualification. Lowie, op. cit., pp. 227, 367. For the whole problem of the emergence and organization of leadership, see Lowie, , The Origin of the State (N. Y., 1927)Google Scholar; Goldenweiser, A. A., “Anthropological Theories of Political Origins,” in Political Theories, Recent Times, ed. Merriam, and Barnes, (N. Y., 1924)Google Scholar.

²¹ E. Meyer, op. cit., vol. i, 144 ff.; iii, 73–85; Durkheim, , Elementary Forms of the Religious Life (tr. Swain, ), pp. 205–230Google Scholar. For a discussion of the relation between war and the tightening up of group organization, see Lowie, , The Origin of the State, pp. 6–19Google Scholar; E. Meyer, op. cit., vol. iii, 68.

²² For instances of religious kingship, see Hocart, , Kingship, pp. 7–15Google Scholar; for early India, Ghoshal, U. N., Hindu Political Theories (Oxford, 1927)Google Scholar, passim; for the early Sumerians, E. Meyer, op. cit., iii, pp. 151–152; for the Egyptians, Ibid., ii, pp. 165–167, and Moret, Caractère religieux de la royauté pharaonique; for pre-Hellenic Crete, Glotz, G., Aegean Civilization (N. Y., 1925), pp. 147 ff.Google Scholar; for the Roman monarchy, Greenidge, , Roman Public Life, pp. 51 ffGoogle Scholar. For combination of priestly functions with the chieftainship among the Maori, see Hartland, , Primitive Law, p. 32Google Scholar; for other parts of Oceania, Rivers, Social Organization, pp. 162–163. It is Sir James Fraser's thesis that kingship developed from the function of the public magician, or medicine-man. He has collected an enormous amount of evidence in The Golden Bough (one vol. ed., N. Y., 1925), pp. 83–106Google Scholar. The importance of the supposed connection between kingly and divine power in securing obedience is illustrated by the attempts of monarchs like Alexander the Great and Augustus to consolidate a newly united empire by establishing the cult of emperor-worship. See Goodenough, E. R., “The Political Philosophy of Hellenistic Kingship,” in Yale Classical Studies, vol. 1, pp. 55 ffGoogle Scholar.

²³ E.g., in the form of the theory of the king as God's vicegerent, Bossuet, , La politique tirée de l'Ecriture, V, iv, 1Google Scholar; and the recent Japanese conception of the divine right of the Mikado, Uyehara, G. E., The Political Development of Japan (London, 1910), pp. 19 ffGoogle Scholar.

²⁴ Rivers, op. cit., p. 161; Hobhouse, op. cit., p. 71.

²⁵ Howitt, op. cit., p. 334.

²⁶ Hobhouse, op. cit., pp. 93–95.

²⁷ Ibid., p. 71; Marett, , Anthropology, pp. 189–190Google Scholar.

²⁸ See first installment of this article, American Political Science Review, vol. 23, pp. 324–325Google Scholar.

²⁹ Howitt, op. cit., pp. 334 ff.

³⁰ Vinogradoff, , Historical Jurisprudence, vol. i, p. 349Google Scholar.

³¹ Maitland, , Collected Papers, vol.ii, 448Google Scholar; Taylor, , The Mediaeval Mind, vol.i, 231–232Google Scholar.

^31a Dr. Goitein advances the interesting suggestion that this willingness is largely founded on what may be called the “aleatory” instinct—the willingness to “take a chance” and abide by the result. Primitive Ordeal and Modern Law, pp. 266–271.

³² Hobhouse, op. cit., pp. 75 ff. The practice of offering and receiving composition tends to become customary, and a customary tariff of payments establishes itself. Vinogradoff, , Custom and Right, p. 35Google Scholar. But such a custom unlike other customs in that it is applicable only to a situation when a dispute has already occurred and blood is heated, is never as completely self-enforcing as customs of private every-day behavior (so-called “non-litigious” customs). It establishes an expectation without giving much assurance that the expectation will be satisfied. This is a characteristic of all customs which relate to the settlement of disputes until an authority is established to enforce them.

³³ Jenks, , Law and Politics in the Middle Ages, pp. 102, 105–106Google Scholar.

³⁴ Lex Salica, 2; Boretius, I, 283.

³⁵ From practically the outset of group life, something approximating to a public criminal jurisdiction is almost always exercised by the group leadership in punishing individuals whose conduct threatens to bring disaster on the group. A striking example is the so-called “buffalo-police” among the Plains Indians. Lowie, , Primitive Society, p. 385Google Scholar. Offenses so punished were, however, almost always of a religious or sacral character, e.g., sorcery, divulging religious mysteries, etc. See Howitt, op. cit., pp. 297, 332, 341–344; Hobhouse, op. cit., pp. 88–92. “The evolution of criminal justice may be looked at as an extension of the conception of a tribal offense till it covers every serious wrong done to a single member of the tribe.” Ibid., p. 92. Professor Calhoun thinks that a true criminal jurisdiction did not emerge in Greece until the time of Solon. Calhoun, G. M., Growth of Criminal Law in Ancient Greece (Berkeley, 1927)Google Scholar, ch. iv.

³⁶ Foundations of Belief, p. 243.

³⁷ “In the earliest time ‘right’ appeared to be of divine origin.” Hirtzel, R., Themis, Diké und Verwandtes (Leipzig, 1907)Google Scholar. Primitive man was sure there was a right, but he did not always claim to know it—he was content to leave such knowledge to the gods.

³⁸ Primitive man's conception of divinity was broad enough to include much of what we mean by “personality,” in the sense of personal effectiveness. This quality of getting results was regarded as an indwelling divine power, to which the name orenda was applied among the Iroquois, and mana among the Melanesians. See Harrison, , Themis (Cambridge, 1912), pp. 63–68Google Scholar. Professor Myres sees something of this notion of “drive” in the primitive conception of arché. op. cit., supra note 10, p. 158.

³⁹ The doctrine that calamities, plagues, famines, etc., are proof that the ruler is displeasing to the higher powers survived far down into medieval political thought. See my Statesman's Book of John of Salisbury, p. lxx. For the idea in ancient China, see Wu, K. C., Ancient Chinese Political Theories (Shanghai, 1928), p. 14Google Scholar; in India, Ghoshal, op. cit., supra note 22, p. 140; in Greece, Homer's, Odyssey, xix, 108Google Scholar.

⁴⁰ When the Homeric kings handed down their dooms, or “themistes,” the latter “were not framed in accordance with any body of law. Diké, or rightness, guided the royal judge” (Halliday, , Growth of the City State, p. 71Google Scholar) as he held the magic sceptre, while Themis, the “prudent counsel of the gods,” pointed out to him the practical advantages and disadvantages of the alternatives before him. For Themis in this sense, see Hirtzel, op. cit., supra note 37, pp. 4, 7–8, 9–11, 19; but see Weiss, E., Griechisches Privatrecht (Leipzig, 1923), i, 19Google Scholar. This conception is carried forward in later royalist thought in the theory of the king as “animate law” (Goodenough, op. cit., supranote 22, pp. 65 ff.). Law is not so much a known rule as the king's will for justice.

⁴¹ Frazer, , Golden Bough (one vol. ed.), p. 49Google Scholar; Meyer, E., Histoire de l'Antiquitié, vol. i, p. 142 ffGoogle Scholar.

⁴² That the will of the gods was subject to a higher necessity was a common-place in the Greek conception of Moira, or fate. Burle, E., Notion de Droit Naturel dans l'Antiquité Grecque (Trevoux, 1908), 28–31Google Scholar. It was an easy step from this notion to the conception of a body of “natural” law consisting of rules that could not be changed even by the gods themselves, i.e., an order of nature to which all rules of decision must conform. See Myres, op. cit., lecture v; Weiss, op. cit., i, 68 ff.

⁴³ All primitive law rests on precedents, although this is not always recognized, because they are not written. Maine, , Ancient Law, pp. 11–13Google Scholar. “The primitive view regards law, not as something which lays obligations on individuals, but as a limitation on the otherwise free discretion of the judge.” Weiss, op. cit., i, 30.

⁴⁴ See my articles, “The Law Behind Law,” Columbia Law Review (February and March, 1929), xxix, 113, at pp.125–141Google Scholar.

⁴⁵ Vinogradoff, , Historical Jurisprudence, vol. i, p. 168Google Scholar.

⁴⁶ Vinogradoff, , Historical Jurisprudence, vol. i, p. 353Google Scholar.

⁴⁷ I.e., the “litigious customs” referred to above, note 32.

⁴⁸ Jung, E., Das Problem des Natürlichen Rechts (Leipzig, 1912), p. 155Google Scholar, citing Ehrlich, Tatsachen das Gewohnheitsrecht; Kuhlenbeck, , Natürliche grundlagen des Rechts und der Politik, p. 170Google Scholar.

⁴⁹ Cardozo, , The Paradoxes of Legal Science (N. Y., 1928), p. 15Google Scholar; Salmond, , Jurispudence (7th ed., 1924), p. 208Google Scholar; Lefroy, , “Basis of Case Law,” Law Quarterly Rev., vol. 22, p. 303Google Scholar. For an illustration, see Vinogradoff, , Custom and Right, p. 35Google Scholar.

⁵⁰ Vinogradoff, , Historical Jurisprudence, vol. i., p. 368Google Scholar.

⁵¹ This was true, for example, of breaches of marriage customs, which, because they were supposed to bring on the community the wrath of the gods, were among many peoples subject to the early criminal jurisdiction discussed in note 35 supra, and in the passages in Howitt and Hobhouse there cited. So of the litigious customs referred to in note 32.

⁵² For the difference between a rule of custom and a legal rule of decision, even when the latter accepts the former, see Goitein, H., Primitive Ordeal and Modern Law (London, 1923), pp. 210–213Google Scholar.

⁵³ See such cases as Y. B. 12–13 Ed. III (Rolls Series 236); Freary v. Cooke, 14 Mass. 488; Metcalf v. Wild, 14 Gray (Mass., 1859) 210; Sieger v. Slingerland, 2 Caines (N. Y., 1804) 219; Hollis v. Wells (Pa., 1845) 3 Clark 169; 5 Pa. Law J. 30.

⁵⁴ “The history of law is in effect the history of the critical moments in the changing of custom, and rules of law may be looked on as the accumulating deposit of the social solvents of custom.” Goitein, op. cit., p. 214.

⁵⁵ For the enormous importance of this task, see Frazer, , Golden Bough (one vol. ed.), pp. 47–48Google Scholar.

⁵⁶ It was also true of the government of the Hildebrandine papacy in the Church, which affords one of the most interesting instances of a successful war of authority against custom. See Fournier, P., “Un Tournant de l'Histoire de Droit,” in Nouvelle Revue de Droit François et Etranger, vol. 40, pp. 139–141 (1916)Google Scholar.

⁵⁷ As in the case of the alterations in cultural and economic interests which made possible and sustained the legal changes effected by the Revolutionary government of France.

⁵⁸ “The creation of judges everywhere antedates the existence of formal law. But though formal law does not at first exist, the law itself exists, or there would be no occasion to appoint a judge to administer it.” Carter, J. C., “The Ideal and the Actual in the Law,” American Law Review, vol. 24, p. 759Google Scholar.

⁵⁹ The fact that individuals settle their disputes without recourse to authority by no means implies that they settle them according to law, or that law exists, as seems to be often assumed, e.g., by Jung, , Das Problem des natürlichen Rechts, p. 98Google Scholar. One dispute may be brought to voluntary settlement with one result, another of substantially the same kind with a wholly different result. If uniform ways of adjusting disputes of the same kind grow up, as they occasionally do, they result in either a moral idea or a custom, which furnishes the raw material for a rule of law; but the difference is that such a custom or idea is followed only in the cases—not always numerous—where its content happens to satisfy both parties, while a law, whatever its content, appeals, because of its authoritative source, to all the interests connected with the maintenance of the group processes. Hence the difference in effectiveness between the rules of so-called international law and those of positive municipal law.

⁶⁰ Jung, , Das Problem des natürlichen Rechts, p. 91Google Scholar.

⁶¹ Ibid., p. 94.

⁶² The intransigeance of such claims, supported by a subjective sense of right, is discussed by Goitein, op. cit., supra note 52, pp. 257, 258, and by Dewey, , Human Nature and Conduct, p. 83Google Scholar. Yet Jung undertakes to say: “The rules as to the existence or non-existence of a legal violation are derived and secondary; the obligation to lawful conduct does not exist because such rules exist, but these rules exist because the former obligation exists. Rules and concepts form themselves about uniform individual reactions which repeat themselves in similar situations because the individual members of a legal community react in a certain constant fashion to a particular kind of conduct.” op. cit., pp. 100–101. This is true in so far as law conforms to settled custom, but nowhere else. Hobbes placed his finger on the crux of the problem when he pointed out the need for “a common measure of all things that might fall in controversy; as, for example, of what is to be called right, what much, what little, what meum and tuum.” Elements of Law (ed. Tönnies, , Cambridge, 1928), pp. 149, 150Google Scholar.

⁶³ Jung, op. cit., p. 65.

⁶⁴ Ibid., p. 93.

⁶⁵ This is admitted by Jung, Ibid., pp. 102–103.

⁶⁶ This confusion is enhanced by the legal doctrine, perfectly admissible if properly understood, which conceives a relation of principal and agent as existing between the organized community and its authoritative organ, and which therefore attributes to the former the acts of the latter. The identification was further promoted by the tendency of early thought to personify the group by a living symbol, god or king, which produced the view that the king was himself the state, or organized community. Goodenough, op. cit., supra note 22 p. 86. Finally, when various forms of “popular” participation in government were introduced, it became commonplace to conceive the community as acting not merely in a legal but in an actual sense, without realizing that it can so act only through some specific form of organization, i.e., through some official mouthpiece.

⁶⁷ Thus, Jung is quite correct in pointing out that “a presupposition of the appearance of legal concepts is the existence of a community of members regarding one another with a certain amount of respect.” op. cit., p. 67.

⁶⁸ According to Hirtzel, a recognition of this seems to have been a basic element in the Greek conception of diké, or “justice.” Diké “is the blow which, falling between the parties, has equal and impartial authority for both, through which therefore right appears to realize itself in opposition to strife. Upon the dark background of strife right brightens in the form of the decision of the judge which brings an end to contention.” op. cit., supra note 37, p. 103. “Diké points to a relationship between parties both of whom have rights—relationship in which right is not all on one side ….. The free intercourse between such parties is regulated by diké, which determines the limits of the opposing claims. There is always at the basis of the nation a judicial decision, actual or conceived. Where this does not reach, diké also ceases.” Ibid., p. 128. To the same general effect, Goitein, op. cit., supra note 52, pp. 265–275. See alsoHobbes, note 62 supra

⁶⁹ For a good exposition of this view, see Jenks, , Law and Politics in the Middle Ages, pp. 295 ff.Google Scholar, where it is suggested that law as a social force is older than human society, and inhered in animal instinct. If law is taken as identical with the tendency to uniformity in conduct, such a view is admissible; but to take law in such a sense is to make it impossible to understand many of its more important characteristics.

⁷⁰ “Before the law, then, we have justice without law, and after the law and during the evolution of law we still have it as a non-legal element under the name of discretion with reference to the requirements of individual cases.” Pound, , “Justice According to Law,” Columbia Law Review, vol. 13, p. 697Google Scholar. It is to conceal this element of discretion that the king is spoken of as “animate law,” supra note 40.

⁷¹ See my article, “The Law Behind Law,” supra note 44, p. 117.

⁷² For a good example of legislation among a primitive people, occasioned by a growing dearth of certain animals, see Moss, C. R., “Nabaloi Law and Ritual,” in University of California Publications in American Archaeology and Ethnology, vol. 15, p. 237Google Scholar. For a general treatment of primitive legislation, see Hartland, , Primitive Law, pp. 200 ffGoogle Scholar.

⁷³ Quoted from Les Transformations du Pouvoir, in Matagrin, A., La Psychologie sociale de Gabriel Tarde (Paris, 1910), p. 252Google Scholar.

⁷⁴ See Cole, G. D. H., Social Theory (N. Y., 1920), pp. 40, 128Google Scholar.

⁷⁵ Simmel has pointed out the greater necessity for specialized organs of authority in larger than in smaller groups. “Small groups are characterizedby the fact that they require a larger participation on the part of individual members ….. Large groups are forced to build special structures to take over the function which the immediate reciprocity between elements fulfills in small circles. The social-unity can no longer be produced and preserved by the immediate relationships between individuals, and the large group must therefore build special organs in which the reciprocal activities and relationships of its elements can crystallize,” Spykman, N. J., The Social Theory of Georg Simmel (Chicago, 1925), pp. 136–137Google Scholar. Therefore, in a large group, custom, voluntary adjustment, and informal leadership cannot produce order without authority in the way which is possible in small groups.

⁷⁶ See the brilliant chapter, “The Building of Empire,”in a brilliant book MacIver, , The Modern State (Oxford, 1926), pp. 50–60Google Scholar.

⁷⁷ See the chapter, “The Nature of the Composite State,” in Willoughby, , The Nature of the State (N. Y., 1911), pp. 232–275Google Scholar.

⁷⁸ For the so-called theory of “Kompetenz-Kompetenz,” see Merriam, , History of the Theory of Sovereignty Since Rousseau (N. Y., 1900), pp. 109–196Google Scholar; Willoughby, op. cit., pp. 192 ff.; American Political Science Review, vol. 12, pp. 199–200Google Scholar.

^78a More and more, governmental intervention is taking the form of stimulating and guiding voluntary adjustment, rather than that of imposing authoritative standards.

⁷⁹ On the other hand, it is not proper to assume, as many writers do, that the use of state authority represents a pathological condition. E.g., Jung, op. cit., supra note 59, p. 98. Resort to authority is as inevitable a social phenomenon as voluntary adjustment.

⁸⁰ Vinogradoff notes that the establishment of the supremacy of the “common law” over local customs in England “represents the juridical influence of the military class.” Custom and Right, p. 30. See also Maine, , Early Law and Custom, p. 186Google Scholar.

⁸¹ Salt, , “The Local Ambit of a Custom,” Cambridge Legal Essays (1926), p. 282Google Scholar.

⁸² The matter has never been better put than by Professor MacIver: “Coercive power is the criterion of the state, but not its essence.” Op cit., supra note 76, p. 223. “It is true that there is no state where there is no overruling force. This is the differentia between the state and all other associations. There is no state where other associations arrogate to themselves the exercise of compulsion. But the exercise of force does not make a state.” Ibid., p. 230.

⁸³ Introduction to Political Science (London, 1911), pp. 72–76Google Scholar.

⁸⁴ For the limitation of the power of the early Greek assemblies to informal approval or disapproval, see Halliday, , Growth of the City-State, p. 73Google Scholar. For a general discussion of early assemblies, Botsford, , The Roman Assemblies, pp. 168–171Google Scholar. At p. 171 Botsford cites instances where the king acted in spite of disapproval by the assembly. In historic times the Spartan assembly expressed its will by shouting and not by vote. Thucydides, I., 87. So the Florentine parlamento in the fifteenth century. English Historical Review, vol. 42, p. 641Google Scholar. It is sometimes thought that the voting of a law by the early Roman assembly was merely the assumption by the people of an obligation to obey it. “The citizens bound themselves to the acceptance of the proposition on an oral promise.” Botsford, op. cit., p. 179.

⁸⁵ Adams, G. B., Constitutional History of England (N. Y., 1921), pp. 168 ffGoogle Scholar; Pollard, A. F., Evolution of Parliament (2nd ed., London, 1926), pp. 36–60Google Scholar.

⁸⁶ See article by Sturzo, Dom Luigi, “Right of Resistance to the State,” Contemporary Review (Sept., 1928), vol. 134, pp. 312 ffGoogle Scholar.

⁸⁷ Lowell, , Public Opinion and Popular Government, pp. 8–15Google Scholar.