162 HAROLD M. WIENEK, M.A., LL.B.^ ON THE 



its hills and valleys and the survival of a large alien population 

 filling in the interstices between the Hebrew settlements, must 

 have made a centralised national power impossible for long 

 after the days of Moses. 



With regard to legal machinery everything is very primitive. 

 With the single doubtful exception of the bill of divorce, the 

 use of writing by private persons in the ordinary course of 

 every-day life is never contemplated. Hence we find, as in so 

 many primitive communities, that legal business was habitually 

 transacted in the most public place possible, i.e., at the gate of 

 the city, where the facts would necessarily become known to 

 those who would be judges or witnesses or both in case of any 

 future dispute. 



Turning now to the intellectual element in the law we find 

 that the state of legal reflection is also very primitive. A 

 distinction between intentional murder and other forms of 

 homicide is introduced for the first time, and in terms that 

 show clearly how difficult the conception was to contemporaries 

 of Moses. The same holds good of the law of rape. In the 

 case of the savage ox the Hebrew legislator reaches the same 

 stage of reflection as the Babylonian, but the undeveloped state 

 of thought is further attested by sacrificial provisions relating 

 to sins committed in ignorance and wilfully, which, however, 

 strictly fall outside the scope of this paper. An act committed 

 in ignorance may be a sin, calling for atonement. On the other 

 hand no atonement can be made for wilfid sins, and all sins are 

 regarded as either ignorant or wilful. Such conceptions are the 

 best witness to the extremely archaic nature of the legislation. 



To sum up the results of our survey : In dealing with any 

 legal system it is necessary to separate the accidental from the 

 essential, the universal from the characteristic. Every pro- 

 gressive race necessarily passes through certain stages of growth. 

 Every race will be atf'ected by its environment, the surroundings 

 of its life, the tasks that it must accomplish if it wishes to 

 exist. Every progressive race will have to deal with certain 

 problems that arise in all countries, the problems presented 

 by those who kill or injure their neighbours, the ownership of 

 property of various kinds, the commonest forms of social 

 intercourse, and so on. In some of these cases all men 

 of ordinary ability will reach substantially the same solutions ; 

 but in others, tiie interplay of the various factors causes 

 considerable variety. The study of the results is a task of 

 some interest, but it must yield in fascination to the considera- 

 tion of national and legislative ideals and national character. 



