LAW (PRIMITIVE). For the purposes of comparative jurisprudence, law may be defined as the authoritative regula tion of social relations. Thus, in any account of its development, three main points have to be considered : the nature of the au thority or "sanction" involved; the mode of regulation or "pro cedure"; and the social function or "scope." The Legal Sanction.—Whereas analytic jurists dispute whether constraint or consent is in the last resort the principle from which law derives its validity, the student of history in clines rather to regard the spirit of legality as the joint outcome of both these influences acting simultaneously. Walter Bagehot has in mind this correspondence between an outer and an inner necessity when, in Physics and Politics, he recognizes a "perse cuting tendency" and an "imitative tendency" as together con stituting the legal fibre of a primitive society. The sanction, in a word, is custom ; and custom is social habit, resting partly on a general inclination to conform, and partly on a no less general disinclination to suffer as a nonconformist. Now a certain amount of customary law survives in the modern State by the side of the positive enactments of the legislature, and in such a case the maxim "what the sovereign permits, he commands" may be justi fiably held to cover the anomaly. But in a savage community it is often hard to distinguish any sovereign, any determinate person or body of persons vested with the power either of making or of maintaining the laws. Nevertheless, the result is not anarchy. On the contrary, such a society is normally so law-abiding, in the sense of responsive to the social routine, that it might seem almost superfluous to provide a legal machinery that must actu ally but rust in disuse. A closer scrutiny, however, would dis close a considerable degree of coercive power, diffused through the body politic if not yet centralized in official hands, such as rein forces the strong natural propensity of the unreflective to keep in the fashion. Any youth, for instance, who has gone through the
rites of initiation has acquired the sense of discipline at the price of no little pain; the tribal elders being quite ready to mete out death to the hopelessly recalcitrant. Again, all custom is more or less sacred ; and, since the violation of a taboo is held to pollute not only the sinner but all who come into contact with him, the threat of excommunication is ever present to curb unruliness. Finally, every crowd has its leader, so that even the least coherent of human societies looks for guidance to certain headmen. These, so to speak, control the collective luck, having in virtue of their age, outstanding courage or skill, impressiveness, personality, pres tige—in a word, their mana—the gift of making the rest come to heel. Such a government may hardly be aware of its own direc tive functions, since its conscious efforts are mostly concerned with the consecration of custom. Reform, however, creeps in under the guise of re-interpretation. For the rest, there are very various degrees of consolidation under a clan-system, as that type of organization may be termed in which co-ordinate groups sev erally retain a more or less considerable measure of autonomy. As compared, for instance, with the Arunta of central Australia, the Iroquois of North America, with their elaborate scheme of graded councils, family, gentile, tribal and even federal, were far more closely knit together; yet never so completely that the sep aratist tendencies arising from the co-existence of so many semi independent jurisdictions were altogether overcome. On the other hand, as soon as a class-system has come into being, as usually happens through the imposition of a higher culture on another through immigration or conquest, a governing aristocracy with a monarch at its head is on the way to be formed. Thereupon, how ever much he continues to defer to custom, the sovereign's will be comes in theory absolute.