ABSTRACT
COURTS do not come into being as organs o f the state, but of society. Thei r function originall y wa s merel y to determine , upon authority give n b y clan s o r familie s which ha d entere d int o a close relationshi p with on e another , whethe r a quarre l between the members of different associations coul d be composed by payment o f a penalty or whether i t could be expiated only in blood, and eventually to determine the amount of the penalty. I t is not until a much later date that courts ar e being erected by the stat e for matter s tha t directl y concer n the state , e.g. attempt s o n the life of the king , trading with the enemy, violatio n o f the militar y order. A t a later time, the state gains control also over the courts of the former class; but the distinction between administration of justice b y th e stat e an d b y societ y continue s toda y i n the dis - tinction betwee n th e jurisdictio n o f criminal and of civi l causes, in spit e o f th e extensiv e encroachment s o f th e crimina l court s upon the one-time purely social sphere. Bu t the courts were never completely converted into state institutions. Societ y has alway s had, and has kep t to the present day , court s of its own that ar e independent o f the state ; and court s o f this kind com e int o ex - istence fro m tim e to tim e even today . Thoug h th e prevailin g juristic scienc e applie s the ter m courts onl y t o th e stat e organ s for the administration of justice, with which it must concern itself professionally, th e sociolog y o f law , whe n i t define s th e ter m court, i s concerne d onl y wit h th e questio n whethe r o r no t th e institution involve d perform s th e genera l function s o f a court . Considered functionally , th e cour t is a person o r a group of persons who are not parties to the controversy and whose function i s to establis h peace by th e opinio n whic h the y expres s about th e subject matte r o f the controversy . Thi s opinion ha s n o bindin g force even when pronounced by a state court of primitive times; it i s a mere opinion. H e who refuses to submit may resort to self -
help, to a feud, but h e put s himsel f i n the wrong , and lose s th e purely social advantage o f having a just quarrel. A t the beginning the court, even the state court, has no means whereby to coerce a contumacious perso n wh o refuses t o appea r though he ha s bee n summoned, o r who flouts its decision, other tha n exclusio n fro m the communit y (exile), whereby the person exclude d becomes an outlaw, an d mus t wande r about , seekin g res t an d finding none , until h e i s eithe r killed , o r reduce d t o slavery , o r receive d int o another community . A t thi s stage th e deat h penalty , whic h i s found a t a very early time, is merely a sacrifice to the gods, among the classica l peoples, t o the gods of the nether world , th e victi m for whic h is the outlawed person.
