Note 140.1 — The Evolution of Religion

The above is some slight illustration of the development of the Greek concept of purity and of its ethical influence. It remains to trace its action in a very important department of law—the law of homicide. Perhaps the most significant distinction between the code of a civilised and that of a savage or barbaric community lies in their respective attitudes towards manslaughter or murder: in the latter society it is mainly an affair between the families concerned, to be settled by the were-gilt or the blood-feud: in the former the whole community feels itself to be deeply concerned. Our Teutonic ancestors, at the time of Tacitus and for centuries after, remained at the lower stage, though we discern that the legal genius of the Icelanders was impelling them towards the higher even before Christianity reached them. What is strange is that some societies appear to have attained a high general level of civilisation without making this momentous advance: the Homeric world, for instance, was scarcely abreast with the early Icelandic in this respect, although we may see signs that the higher idea was ready to emerge in the later Homeric period.140.1 Then follows a blank in our record which may be tentatively filled up by the interpretation of mythology, until in the developed Attic law—which we know better than the law of any other Greek state—we find the modern idea fully recognised and applied to a criminal code, probably from the sixth century onward, though traces of legal barbarism still survive. We would gladly discover the constructive forces, spiritual or political, that brought this great reform about. The anthropology of our contemporary savage societies has not yet supplied us with analogies that we could apply to Greek history: a few savage states have indeed spontaneously achieved the great advance from the blood-feud to a public law of homicide, but there is no record showing how they have achieved it. Some writers have supposed that the emergence of criminal law in general is always due to some great increase of power in the central government, probably to the development of the monarchy. But as a universal axiom this cannot be accepted; for, as Steinmetz in his treatise on “The Development of Punishment”142.1 has shown, such a suggested cause is not found operative in the backward communities of modern times that have developed a public criminal law. Nor would it be reasonable to urge that the central authority was stronger in Greece of the seventh century than in the earlier monarchical period. Probably Steinmetz is right in his belief that among savage societies the earliest criminal law arises from some intense feeling of hatred or dread excited by acts that violate religious feeling or secular interests. One of the earliest crimes to be punished by death at the hands of the society is incest: the horror that it excites among savages is a feeling that we may call religious. We may not be able to show indeed that the primitive ideas of purity would explain the earliest complicated codes of human marriage: but the circles of kinship that are thus established seem certainly to have been consecrated at a very early time by the concept of purity that came to be attached to them.143.1 Now it is probable that a similar religious feeling was operative in the case of homicide.