This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
No arbitrary line can be drawn between primitive law and the more highly developed systems of law. The term "primitive law" is frequently used to include systems which range from the customs of the lowest tribes to the elaborate and complicated codes of Babylon. At the same time it is convenient to refer to the two extremes, although no sharp line can be drawn between any two stages of law. Primitive law differs from the more advanced systems of law in its content, its purpose, its formality and its enforcement. As compared with our idea of law, we are likely to say that primitive law is a confused mixture of law, morals, religion and etiquette and we are likely to be most doubtful about the propriety of giving the name "law" to it or to any part of it. It is not, however, correct to speak of it as a mixture of these elements. It is rather the mass of original undifferentiated custom out of which law, religion, morals, ethics and etiquette subsequently develop.
The avowed purpose of modern law is primarily to do justice. This is a luxury which is unknown to primitive law. The object of primitive law is to keep the peace and to suppress the blood feud. In other words, for administrative and governmental purposes the primitive stat is very weak, whatever may be the personal power of the ruler as against any individual subject.
Primitive law is based entirely upon procedure, and it is intensely formal. Its very weakness makes it formal. Many of the legal ideas which we regard as rational, logical and inevitable, seem unknown in early jurisprudence. At primitive law, rights are not based on an orderly and logical system of legal principles. No general theory of rights exists. They are limited to those cases where the rigid and formal procedure of the law gives a remedy. Their enforcement depends not on the merits of the case, but on compliance with archaic formalities. Those who administer the law seem incapable of thinking of a right apart from the remedy for enforcing it and apart from the formalities whereby such remedy may be obtained. Abstract ideas, as might be expected, were scarcely known; and while certain classes of rights in corporeal property were recognized and protected, contracts, that is, executory enforceable promises were rudimentary.
With reference to the method of enforcing law, the fundamental theory of modern law is that this is the business of the state. The state in which primitive law flourishes is far too weak for any such display of power. If a judgment has been rendered it is for the injured party to enforce the judgment himself. In extreme cases and in the stronger states, the central authority may support him in his efforts to enforce the judgment, but this is a method of enforcement which appears only in extreme cases and in the stronger states. The sanction of primitive law is fully as much a religious sanction as it is a civil one; and in many cases it resembles the extreme form of social ostracism more than anything else.