Jus retentionis

Abstract

One can imagine a primitive society ruled by customs respected by all in a particular community or tribe. Any breach of such a custom would normally call for a sanction, which sanction, however, was more often than not exercised by the individual who had suffered the wrong. Furthermore a member of any particular community at this stage of legal evolution was freely admitted the right to defend himself, even by force, against the person who was the source of the breach in the society's rules. In all probability any judicial contestation of this right of autodefence took place only after it had already been exercised. The judicial remedy was, therefore, not the primary means of the defence of rights, but a secondary one, applicable only when it was alleged that the self-defence was unjustified. This is conjecture based on what I imagine would be the situation in a primitive society, where judicial organization was not adequately constituted. "It is certain that, in the infancy of mankind, no sort of legislative not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the fotting of custom; it is rather a habit. It is, to use the French phrase, "in the air."