Now there does seem to have been that. As has been well pointed out by Dr. Oort,[108] in the tribes which became Israel justice must have been administered by the heads of the various bodies which went to make these up. The household was ruled even in matters of life and death solely by the father; the family, in the wider sense, was judged by its own heads; the tribes by the elders of the tribes, and there probably was no appeal from one tribunal to another. Each tribunal was final in its own domain. It may be, also, that the judicial function was in all these bodies exercised in the lax and timid fashion common among Bedouin tribes to-day.[109] In all cases, too, it is probable that in the pre-Mosaic time the standard of judgment was customary law. Only with this very great modification can Oort's epigrammatic description of the situation--"There was no law, but there were givers of legal decisions"--be accepted. So far as can be ascertained, the customs according to which men were expected to live were perfectly well known, and within certain narrow limits of variation were extraordinarily stable. How stable customary law may be made, even in the midst of a society governed in the main according to written law in its strictest sense, may be seen in the execration which any breach of the Ulster custom of tenant right met with, before that custom was embodied in any statutes. And in antiquity the stringency of custom can hardly be exaggerated. Under it, when thoroughly established, there was, in all the cases covered by it, only this one way of acting for all, both men and women, who were fit for society at all. Any alternative course was probably inconceivable in the tribal stage of the Israelites' existence.
[108] Cf. _Oud-Israël Rechtswezen_, pp. 10 ff.
[109] Cf. Doughty, _Arabia Deserta_, vol. i., p. 249.
But a change would doubtless be wrought whenever the appointment of a king took place. Then national law would appear, in embryo at least; and at first, until custom had grown up in this region also, it would largely be an expression of the will of the king, and of the royal officers instructed and trained by the king. But it would have free and unchallenged course only when it claimed authority in matters lying outside of the family and tribal jurisdictions. Wherever it attempted to interfere with tribal or family rights, danger to the kingship of the most acute kind would be sure to arise. In all probability, it was disregard of this axiomatic truth which made Solomon's reign so burdensome to the people and tore the kingdom asunder under Rehoboam. Ahab too fell a victim to his disregard of it. Lastly, the introduction of elaborate written codes of law would, if it came as the crown of such a development, depose custom from its supremacy, though it would not abolish it; and would substitute for it as the main element in all judicial matters the written prescription, which is the necessary presupposition of a fully organised judiciary of the modern type, with a regulated and definite power of appeal.
But in the case of ancient Israel there is a distinguishing element which has to be fitted into this ordinary scheme of progression, and that is the Divine revelation to Moses. Taken up at the tribal stage by the Mosaic revelation, the Israelite tribes were touched and welded into coherence, if not quite as a nation, at least as the people of Yahweh, so that during all the distracting days of the Judges they kept up in essentials their social and religious unity.[110] And with the religious union there must have come administrative uniformity to some considerable extent. The jurisdiction of the heads of households, of heads of families, and of the tribal elders would be as little interfered with as possible; but, as we have seen, all customs and rights had to be reviewed from the point of view of the new religion, and appeal to Moses as the prophet of it must have often been unavoidable. Just as his first followers were continually coming to Mohammed, to ask whether this or that ancient custom could be followed by professors of Islam, so there must have been constant appeals to Moses. So long as he lived, therefore, he, and after him Joshua and Moses' fellow-tribesmen the sons of Levi, as being specially zealous for the religion of Yahweh, must have been constantly called in to assist the customary judges; and so the habit of appeal must have grown in Israel long before there was any king. Thus also a common standard of judgment would be established. That standard must necessarily have been the law of Yahweh, _i.e._ the new Yahwistic principles and all that might _prima facie_ be deduced from them, together with so much of custom and tradition as had been accepted as compatible with these principles. We have stated the reasons for holding that the Decalogue was Mosaic, and the Book of the Covenant may be taken also to represent what the current law in Mosaic or sub-Mosaic time was held to be. As Oort well says (_loc. cit._), when we know that the Hittites about the middle of the fourteenth century B.C. concluded a treaty with Rameses II. of Egypt the terms of which were written upon a silver plate, "why may there not also have been written statements regarding the mutual rights and duties of the people of a town, engraved upon stone or metal, and set forth openly for inspection?" What he confines to mere town business and refers to the time of the Judges, we may without risk extend to a general fundamental law like the Decalogue, or even to the Book of the Covenant, and date it in the time of Moses. Writing was so common an accomplishment in Canaan before the Exodus, that such a supposition is not in the least improbable. These written laws formed the crown of the law of Yahweh, and by them all the rest was raised to a higher level and transformed.