The direct impetus to overcoming the defects that were inherent in penal justice as a result of its having originated in the conflicts of individuals, did not come from a clear recognition of differences in the character of the crimes themselves, but primarily from the fact of a gradual _division of judicial functions_. This is shown particularly by the development of Græco-Roman as well as of Germanic law. It is in the criminal court, which supersedes blood-revenge, that public authority is most directly conscious of its power over the individual. Hence the criminal court appears to be the highest of the courts, and the one that most deeply affects the natural rights of man. Its authority is vested solely in the ruler, or in a particularly sacred tribunal. This is due, not so much to the specific character of the crimes over which it has jurisdiction, as to the respect which it receives because it assumes both the ancient duty of blood-revenge and the function of exacting a requital for religious guilt. Similarly, other offences also gradually pass from the sphere of personally executed revenge or from that of the strife of individuals, and become subject to the penal authority of the State. The division of judicial authority, to which these tendencies lead, is promoted by the differentiation of public power, as a result of which the administration of justice is apportioned to various officials and magistrates, as well as are the other tasks of the State. It is for this reason that, if we consider their civilization as a whole, the constitutional States of the Occidental world were led to differentiate judicial functions much earlier than were the great despotic monarchies of the Orient. These monarchies, as the code of Hammurabi shows, possessed a highly developed husbandry and a correspondingly advanced commercial and monetary system, whereas they centralized all judicial functions in the ruler.
Thus, the State gains a twofold power, manifested, in the first place, in the very establishment of a judicial order, and, secondly, in the differentiation of the spheres of justice in which the authority of the State over the individual is exercised. This finally prepares the way for the last stage of development. The state itself becomes subject to an established legal order which determines its various functions and the duties of its members. There thus originates an officialdom, organized on fixed principles and possessing carefully defined public privileges. The people of the State, on the other hand, are divided into definite classes on the basis of the duties demanded of them as well as of the rights connected with these duties. These articulations of political society, which determine the organization of the army, the mode of taxation, and the right of participation in the government of the State, develop, as we have already seen, out of totemic tribal organization, as a result of the external conditions attendant upon the migrations and wars connected with the rise of States. But they also exhibit throughout the traces of statutes expressing the will and recording the decisions of individual rulers, though even here, of course, universal human motives are decisive. After the political powers of the State have been divided and have been delegated to particular officials and official colleges, and after political rights have been apportioned to the various classes of society, the next step consists in rendering the organization of the State secure by means of a _Constitution_ regulating the entire political system. In the shaping of the Constitution, it cannot be denied that individual legislators or legislative assemblies played a significant rôle. Nevertheless, it must be remembered that it is solely as respects the _form_ of State organization that the final and most comprehensive legal creation appears to be predominantly the result of the will acts of individuals. The _content_ of the Constitution is in every respect a product of history; it is determined by conditions which, in the last analysis, depend upon the general culture of a nation and upon its relations with other peoples. These conditions, however, are so complex that, though every form of Constitution and all its modifications may be regarded as absolutely involved in the causal nexus of historical life, the endless diversity of particular conditions precludes Constitutions from being classifiable according to any universal principle. Constitutions can at most be classified on the basis of certain analogies. The most influential attempt at a genetic classification of the various historical forms of government was that of Aristotle. But his classification, based on the number of rulers (one, a few, many, all) and on the moral predicates of good and evil (monarchy and tyranny, aristocracy and oligarchy, etc.), offers a purely logical schema which corresponds but partially with facts. True, it not infrequently happens that the rule of all--that is, democracy--gives way to the evil form of individual rulership--namely, tyranny. An aristocracy, however, or even a monarchy, may likewise develop into a tyranny. What the change is to be, depends upon historical conditions. Nor are monarchy, aristocracy, or the rule of the middle class forms of government that are ever actually to be found in the purity which logical schematization demands. Even in the Homeric State there was a council of elders and an assembly of freemen--an agora--in addition to the king. Indeed, if we go back still farther and inquire concerning those more primitive peoples of nature who are merely on the point of passing from tribal organization to a political Constitution, it might perhaps be nearer the truth to assert that democracy, and not monarchy, was the form of the early State. The fact is that the organization characteristic of the State as a whole is the product of historical factors of an exceedingly variable nature, and that it never adequately fits into any logical system that is based on merely a few political features. Even less may a logical schema of this sort be regarded as representing a universal law of development.
Thus, the State is indeed the ultimate source of all the various branches of the legal system. So far as the fundamental elements of its own Constitution are concerned, however, it is really itself a product of _custom_, if we take this term in its broadest sense, as signifying an historically developed order of social life which has not yet come under the control of political authority. The course of development is the very opposite of that which rationalistic theories have taught, ever since the time of the Sophists, concerning the origin of the State. These theories maintain that the legal system originated in connection with the State, and that it then acquired an application to the separate departments of life. The reverse is true. It is with the determination of the rights of individuals and with the settlement of the controversies arising from these rights that the legal power of the State takes its rise. It is strengthened and extended when the custom of personal retribution comes to be superseded by penal law. Last of all comes the systematic formulation of the political Constitution itself. The latter, however, is never more than a _development_; it is not a creation in the proper sense of the word. Even such States as the United States of North America and the new German Empire were not created by lawgivers, but were only organized by them in respect to details. The State as such is always a product of history, and so it must ever remain. Every legal system presupposes the power of a State. Hence the latter can never itself originate in an act of legislation, but can only transform itself into a legal order after it has once arisen.
