[1] This appears to be an unnecessary complication. The sovereign has
authorized the master to set the law, although not compelling him to
do so, and enforces the law when set. There seems no good reason why
the law should be called a rule of positive morality at all.
[2] In English speech another ambiguity is happily wanting which in
many languages besets the phrase expressing "a right." The Latin
"jus," the German "Recht," the Italian "diritto," and the French
"droit" express, not only a right, but also law in the abstract. To
indicate the distinction between "law" and "a right" the Germans are
therefore obliged to resort to such phrases as "objectives" and
"subjectives Recht," meaning by the former law in the abstract, and
by the latter a concrete right. And Blackstone, paraphrasing the
distinction drawn by Roman law between the "jus quod ad res" and the
"jus quod ad personas attinet," devotes the first two volumes of his
_Commentaries_ to the "Rights of Persons and the Rights of Things."
See Holland's _Elements of Jurisprudence_, 10th ed., 78 seq.
JURISPRUDENCE, COMPARATIVE. The object of this article is to give a
general survey of the study of the evolution of law. It is not concerned
with analytical jurisprudence as a theory of legal thought, or an
encyclopaedic introduction to legal teaching. Jurisprudence in such a
philosophic or pedagogical sense has certainly to reckon with the methods
and results of a comparative study of law, but its aims are distinct from
those of the latter: it deals with more general problems. On the other
hand, the comparative study of law may itself be treated in two different
ways: it may be directed to a comparison of existing systems of
legislation and law, with a view to tracing analogies and contrasts in
the treatment of practical problems and taking note of expedients and of
possible solutions. Or else it may aim at discovering the principles
regulating the development of legal systems, with a view to explain the
origin of institutions and to study the conditions of their life. In the
first sense, comparative jurisprudence resolves itself into a study of
home and foreign law (cf. Hofmann in the _Zeitschrift für das private und
öffentliche Recht der Gegenwart_, 1878). In the second sense, comparative
jurisprudence is one of the aspects of so-called sociology, being the
study of social evolution in the special domain of law. From this point
of view it is, in substance, immaterial whether the legal phenomena
subjected to investigation are ancient or modern, are drawn from
civilized or from primitive communities. The fact that they are being
observed and explained as features of social evolution characterizes the
inquiry and forms the distinctive attribute separating these studies from
kindred subjects. It is only natural, however, that early periods and
primitive conditions have attracted investigators in this field more than
recent developments. The interest of students seems to have stood in
inverse ratio to the chronological vicinity of the facts under
consideration--the farther from the observer, the more suggestive and
worthy of attention the facts were found to be. This peculiarity is
easily explained if we take into account the tendency of all evolutionary
investigations to obtain a view of origins in order to follow up the
threads of development from their initial starting-point. Besides, it has
been urged over and over again that the simpler phenomena of ancient and
primitive society afford more convenient material for generalizations as
to legal evolution than the extremely complex legal institutions of
civilized nations. But there is no determined line of division between
ancient and modern comparative jurisprudence in so far as both are aiming
at the study of legal development. The law of Islam or, for that matter,
the German civil code, may be taken up as a subject of study quite as
much as the code of Hammurabi or the marriage customs of Australian
tribes.
The fact that the comparative study of legal evolution is chiefly
represented by investigations of early institutions is therefore a
characteristic, but not a necessary feature in the treatment of the
subject. But it is essential to this treatment that it should be
_historical_ and _comparative_. Historical, because it is only as
history, i.e. a sequence of stages and events, that development can be
thought of. Comparative, because it is not the casual notices about one
or the other chain of historical facts that can supply the basis for any
scientific induction. Comparisons of kindred processes have to be made
in order to arrive at any conception of their general meaning and
scientific regularity. As linguistic science differs from philology in
so far as it treats of the general evolution of language and not of
particular languages, even so comparative jurisprudence differs from the
history of law as a study of general legal evolution distinct from the
development of one or the other national branch of legal enactment.
Needless to say that there are intermediate shades between these groups,
but it is not to these shades we have to attend, but to the main
distinctions and divisions.
1. The idea that the legal enactments and customs of different
countries should be compared for the purpose of deducing general
principles from them is as old as political science itself. It was
realized with especial vividness in epochs when a considerable material
of observations was gathered from different sources and in various
forms. The wealth of varieties and the recurrence of certain leading
views in them led to comparison and to generalizations based on
comparison. Aristotle, who lived at the close of a period marked by the
growth of free Greek cities, summarized, as it were, their political
experience in his _Constitutions_ and _Politics_; students of these know
that the Greek philosopher had to deal with not only public law and
political institutions, but also to some extent private, criminal law,
equity, the relations between law and morals, &c.
Another great attempt at comparative observation was made at the close
of the pre-revolutionary period of modern Europe. Montesquieu took stock
of the analogies and contrasts of law in the commonwealths of his time
and tried to show to what extent particular enactments and rules were
dependent on certain general currents in the life of societies--on forms
of government, on moral conditions corresponding to these, and
ultimately on the geographical facts with which various nationalities
and states have to reckon in their development.
These were, however, only slight beginnings, general forecasts of a
coming line of thought, and Montesquieu's remarks on laws and legal
customs read now almost as if they were meant to serve as materials for
social Utopias, although they were by no means conceived in this sense.
At this distance of time we cannot help perceiving how fragmentary,
incomplete and uncritical his notions of the facts of legal history
were, and how strongly his thought was biased by didactic
considerations, by the wish to teach his contemporaries what politics
and law should be.
It was reserved for the 19th century to come forward with connected and
far-reaching investigations in this field as in many others. We are not
deceived by proximity and self-consciousness when we affirm that
comparative jurisprudence, as understood in these introductory remarks,
dates from the 19th century and especially from its second half.
There were many reasons for such a new departure: two of these reasons
have been especially manifest and decisive. The 19th century was an
eminently historical and an eminently scientific age. In the domain of
history it may be said that it opened an entirely new vista. While,
speaking roughly, before that time history was conceived as a narrative
of memorable events, more or less skilful, more or less sensational, but
appealing primarily to the literary sense of the reader, it became in
the course of the 19th century an encyclopaedia of reasoned knowledge, a
means of understanding social life by observing its phenomena in the
past. The immense growth of historical scholarship in that sense, and
the transformation of its aims, can hardly be denied.
Apart from the personal efforts of eminent writers, a great and general
movement has to be taken into account in order to explain this
remarkable stage of human thought. The historic bent of mind of
19th-century thinkers was to a great extent the result of heightened
political and cultural self-consciousness. It was the reflection in the
world of letters of the tremendous upheaval in the states of Europe and
America which took place from the close of the 18th century onwards. As
one of the greatest leaders of the movement, Niebuhr, pointed out, the
fact of being a witness of such struggles and catastrophes as the
American Revolution, the French Revolution, the Napoleonic Empire and
the national reaction against it, taught every one to think
historically, to appreciate the importance of historical factors, to
measure the force not only of logical argument and moral impulse, but
also of instinctive habits and traditional customs. It is not a matter
of chance that the _historical school_ of jurisprudence, Savigny's
doctrine of the organic growth of law, was formed and matured while
Europe collected its forces after the most violent revolutionary crisis
it had ever experienced, and in most intimate connexion with the
romantic movement, a movement animated by enthusiastic belief in the
historical, traditional life of social groups as opposed to the
intellectual conceptions of individualistic radicalism.
On the other hand, the 19th century was a scientific age and especially
an age of biological science. Former periods--the 16th and 17th
centuries especially--had bequeathed to it high standards of scientific
investigation, an ever-increasing weight of authority in the direction
of an exact study of natural phenomena and a conception of the world as
ruled by laws and not by capricious interference. But these scientific
views had been chiefly applied in the domain of mathematics, astronomy
and physics; although great discoveries had already been made in
physiology and other branches of biology, yet the achievements of
19th-century students in this respect far surpassed those of the
preceding period. And the doctrine of transformation which came to
occupy the central place in scientific thought was eminently fitted to
co-ordinate and suggest investigations of social facts. As F. York
Powell put it, Darwin is the greatest historian of modern times, and
certainly an historian not in the sense of a reader of annals, but in
that of a guide in the understanding of organic evolution. Though much
is expressed in the one name of Darwin, it is perhaps even more
momentous as a symbol of the tendency of a great age than as a mark of
personal work. To this tendency we are indebted for the rise of
anthropology and of sociology, of the scientific study of man and of the
scientific study of society. Of course it ought not to be disregarded
that the application of scientific principles and methods to human and
social facts was made possible by the growth of knowledge in regard to
savage and half-civilized nations called forth by the increased activity
of European and American business men, administrators and explorers.
Ethnography and ethnology have brought some order into the wealth of
materials accumulated by generations of workers in this direction, and
it is with their help that the far-reaching generalizations of modern
inquirers as to man and society have been achieved.
2. It is not difficult to see that the comparative study of legal
evolution finds its definite place in a scientific scheme elaborated
from such points of view. Let us see how, as a matter of fact, the study
in question arose and what its progress has been. The immediate
incitement for the formation of comparative jurisprudence was given by
the great discoveries of comparative philology. When the labours of
Franz Bopp, August Schleicher, Max Müller, W. D. Whitney and others
revealed the profound connexion between the different branches of the
Indo-European race in regard to their languages, and showed that the
development of these languages proceeded on lines which might be studied
in a strictly scientific manner, on the basis of comparative observation
and with the object of tracing the uniformities of the process, it was
natural that students of religion, of folk-lore and of legal
institutions took up the same method and tried to win similar results
(Sir H. Maine, Rede lecture in _Village Communities_, 3rd ed.).
It is interesting to note that one of the leading scholars of the
Germanistic revival in the beginning of the 19th century, Jacob Grimm, a
compeer of Savigny in his own line, took up with fervent zeal and
remarkable results not only the scientific study of the German language,
but also that of Germanic mythology and popular law. His
_Rechtsalterthümer_ are still unrivalled as a collection of data as to
the legal lore of Teutonic tribes. Their basis is undoubtedly a narrow
one: they treat of the varieties of legal custom among the continental
Germans, the Scandinavians and the Germanic tribes of Great Britain, but
the method of treatment is already a comparative one. Grimm takes up the
different subjects--property, contract, procedure, succession, crime,
&c.--and examines them in the light of national, provincial and local
customs, sometimes noticing expressly affinities with Roman and Greek
law (e.g. the subject of imprisonment for debt, _Rechtsalterthümer_, 4th
ed., vol. ii., p. 165).
A broader basis was taken up by a linguist who tried to trace the
primitive institutions and customs of the early Aryans before their
separation into divers branches. Adolphe Pictet (_Les Origines
indo-européennes_, i. 1859; ii. 1863) had to touch constantly on
questions of family law, marriage, property, public authority, in his
attempt to reconstruct the common civilization of the Aryan race, and he
did so on the strength of a comparative study of terms used in the
different Indo-European languages. He showed, for instance, how the idea
of protection was the predominant element in the position of the father
in the Aryan household. The names _pîtar_, _pater_, [Greek: patêr],
_father_, which recur in most branches of the Aryan race, go back to a
root _pa_-, pointing to guardianship or protection. Thus we are led to
consider the _patria potestas_, so stringently formulated in Roman law,
as an expression of a common Aryan notion, which was already in
existence before the Aryan tribes parted company and went their
different ways. Descriptions of Aryan early culture have been given
several times since in connexion with linguistic observations. An
example is W. E. Hearn's _Aryan Household_ (1879). Fustel de Coulanges'
famous volume on the ancient city and Rudolf von Jhering's studies of
primitive Indo-European institutions (_Vorgeschichte der Indoeuropäer_)
start from similar observations, although the first of these scholars is
chiefly interested in tracing the influence of religion on the material
arrangements of life, while the latter draws largely on principles of
public and private law, studied more especially in Roman antiquity.
3. The chief work in that direction has been achieved in one sense by a
German scholar, B. W. Leist. His Graeco-Roman legal history, his _Jus
Gentium of Primitive Aryans_, and his _Jus Civile of Primitive Aryans_,
form the most complete and learned attempt not only to reconstitute the
fundamental rules of common Aryan law before the separation of tongues
and nations, but also to trace the influence of this original stock of
juridical ideas in the later development of different branches of the
Aryan race. These three books present three stages of comparison, marked
by a successive widening of the horizon. He began his legal history by
putting together the data as to Roman and Greek legal origins; in the
_Alt-arisches Jus Gentium_ the material of Hindu law is not only drawn
into the range of observation, but becomes its very centre; in the
_Alt-arisches Jus Civile_ the legal customs of the Zend branch, of
Celts, Germans and Slavs, are taken into account, although the most
important part of the inquiry is still directed to the combination of
Hindu, Greek and Roman law. In this way Leist builds up his theories by
the comparative method, but he restricts its use consciously and
consistently to a definite range. He does not want to plunge into
haphazard analogies, but seeks common ground before all things in order
to be able to watch for the appearance of ramifications and to explain
them. According to his view comparison is of use only between "coherent"
lines of facts. Common origin, not similarity of features, appears to
him as the fundamental basis for fruitful comparison. It may be said
that Leist's work is characterized by the attempt to draw up a
continuous history of a supposed archaic common law of the Aryan race
rather than to put different solutions of kindred legal problems by the
side of each other. For him Aryan tribal organization with its
double-sided relationship--cognatic and agnatic--through men and through
women--is one, and although he does not draw its picture as Fustel de
Coulanges does by the help of traits taken indiscriminately from Hindu,
Roman and Greek material, although he notices divisions, degrees and
variations, at bottom he writes the history of one set of principles
exemplified and modulated, as it were, in the six or seven main
varieties of the race. Even so the nine rules of conduct prescribed by
Hindu sacral law are, according to his view, the directing rules of
Roman, Greek, Germanic, Celtic, Slavonic legal custom--the duties in
regard to gods, parents and fatherland, guests, personal purity, the
prohibitions against homicide, adultery and theft--are variations of one
and the same religious, moral and legal system, and their original unity
is reflected and proved by the unity of legal terminology itself.
The same leading idea is embodied in the books of Otto
Schräder--_Urgeschichte und Sprachvergleichung_ (1st ed., 1883; 2nd ed.,
1890) and _Reallexikon der indogermanischen Altertumskunde_ (1901). In
this case we have to do not with a jurist but with a linguist and a
student of cultural history. His training made him especially fit to
trace the national affinities in the data of language, and the sense of
the intimate connexion between the growth of institutions on one side,
of words and linguistic forms on the other, underlies all his
investigations. But Schrader testifies also to another powerful
influence--to that of Victor Hehn, the author of a remarkable book on
early civilization, _Kulturpflanzen und Hausthiere in ihrem Übergang aus
Asien in Europa_ (1st ed., 1870; 7th ed., 1902), dealing with the
migrations of tribes and their modes of acquiring material civilization.
Although the linguistic and archaeological sides naturally predominate
in Schrader's works, he has constantly to consider legal subjects, and
he strives conscientiously to obtain a clear and common-sense view of
the early legal notions of the Aryans. Speaking of the "ordeals," the
"waging of God's law," for example, he traces the customs of
purification by fire, water, iron, &c., to the practice of oaths (Sans.
_am_; Gr. [Greek: omnymi]; O. Ital. _omr_ = first group; O. Ger. _aiþs_,
Ir. _óeth_ = second group; O. Norse _rota_, Arm. _erdnum_ = I swear =
third group). The central idea of the ordeal is thus shown to be the
imprecation--"Let him be cursed whose assertion is false."
The comparative study of the Aryan group assumed another aspect in the
works of Sir Henry Maine. He did not rely on linguistic affinities, but
made great use of another element of investigation which plays hardly
any part in the books of the writers mentioned hitherto. His best
personal preparation for the task was that he had not only taught law in
England, but had come into contact with living legal customs in India.
For him the comparison between the legal lore of Rome and that of India
did not depend on linguistic roots or on the philological study of the
laws of Manu, but was the result of recognizing again and again, in
actual modern custom, the views, rules and institutions of which he had
read in Gaius or in the fragments of the Twelve Tables. The sense of
historical analogy and evolution which had shown itself already in the
lectures on _Ancient Law_, which, after all, were mainly a presentment
of Roman legal history mapped out by a man of the world, averse from
pedantic disquisitions. But what appears as the expression of Maine's
personal aptitude and intelligent reading in _Ancient Law_ gets to be
the interpretation of popular legal principles by modern as well as by
ancient instances of their application in _Village Communities_, _The
Early History of Institutions_, _Early Law and Custom_. The evolution of
property in land out of archaic collectivism, ancient forms of contract
and compulsion, rudimentary forms of feudalism and the like, were
treated in a new light in consequence of systematic comparisons with the
conditions not only of India but of southern Slavonic nations, medieval
celts and Teutons. This breadth of view seemed startling when the
lectures appeared, and the original treatment of the subject was hailed
on all sides as a most welcome new departure in the study of legal
customs and institutions. And yet Maine set very definite boundaries to
his comparative surveys. He renounced the chronological limitation
confining such inquiries to the domain of antiquaries, but he upheld the
ethnographical limitation confining them to laws of the same race. In
his case it was the Aryan race, and in his _Law and Custom_ he opposed
in a determined manner the attempts of more daring students to extend to
the Aryans generalizations drawn from the life of savage tribes
unconnected with the Aryans by blood.
Thus, notwithstanding all diversities in the treatment of particular
problems, one leading methodical principle runs through the works of all
the above-mentioned exponents of comparative study. It was to proceed on
the basis of common origin and on the assumption of a certain common
stock of language, religion, material culture, and law to start with.
What Pictet, Leist, Schrader, and Maine were doing for the Aryans, F.
Hommel, Robertson Smith and others did in a lesser degree for the
Semitic race.
4. The literary group which started from the discoveries of comparative
philology and history was met on the way by what may be called the
ethnological school of inquirers. The original impetus was given, in
this case, by jurists and historians who took up the study in the field
of ancient history, but treated it from the beginning in such a way as
to break up the subdivisions of historic races and to direct the inquiry
to a state of culture best illustrated by savage customs. The first
impulse may be said to have come from J. J. Bachofen (_Mutterrecht_,
1861; _Antiquarische Briefe_, 1880; _Die Sage von Tanaquil_). All the
representatives of Aryan antiquities are at one in laying stress on the
patriarchal and agnatic system of the kindreds in the different Aryan
nations; even Leist, although dwelling on the importance of cognatic
ties, looks to agnatic relationship for the explanation of military
organization and political authority. And undoubtedly, if we argue from
the predominant facts and from the linguistic evidence of parallel
terms, we are led to assume that already before their separation the
Aryans lived in a patriarchal state of society. Now, Bachofen discovered
in the very tradition of classical antiquity traces of a fundamentally
different state of things, the central conception of which was not
patriarchal power, but maternity, relationship being traced through
mothers, the wife presenting the constant and directing element of the
household, while the husband (and perhaps several husbands) joined her
from time to time in more or less inconstant unions. Such a state of
society is definitely described by Herodotus in the case of the Lycians,
it is clearly noticeable even in later historical times in Sparta; the
passage from this matriarchal conception to the recognition of the
claims of the father is reflected in poetical fiction in the famous
Orestes myth, based on the struggle between the moral incitement which
prompted the son to avenge his father and the absolute reverence for the
mother required by ancient law. Although chiefly drawing his materials
from classical literature, Bachofen included in his _Antiquarian
Letters_ an interesting study of the marriage custom and systems of
relationship of the Malabar Coast in India; they attracted his attention
by the contrasts between different layers of legal tradition--the
Brahmans living in patriarchal order, while the class next to them, the
Nayirs (Nairs), follow rules of matriarchy.
Similar ideas were put forward in a more comprehensive form by J. F.
McLennan. His early volume (_Studies in Ancient History_, 1876) contains
several essays published some time before that date. He starts from the
wide occurrence of marriage by capture in primitive societies, and
groups the tribes of which we have definite knowledge into endogamous
and exogamous societies according as they take their wives from among
the kindred or outside it. Marriage by capture and by purchase are signs
of exogamy, connected with the custom in many tribes of killing female
offspring. The development of marriage by capture and purchase is a
powerful agent in bringing about patriarchal rule, agnatic relationship,
and the formation of clans or _gentes_, but the more primitive forms of
relationship appear as variations of systems based on mother-right.
These views are supported by ethnological observations and used as a
clue to the history of relationship and family law in ancient Greece. In
further contributions published after McLennan's death these researches
are supplemented and developed in many ways. The peculiarities of
exogamous societies, for instance, are traced back to the even more
primitive practice of Totemism, the grouping of men according to their
conceptions of animal worship and to their symbols. McLennan's line of
inquiry was taken up in a very effective manner not only by
anthropologists like E. B. Tylor or A. Lang, but also in a more special
manner by students of primitive family law. One of the most brilliant
monographs in this direction is Robertson Smith's study of _Kinship and
Marriage in Arabia_.
But perhaps the most decisive influence was exercised on the development
of the ethnological study of law by the discoveries of an American,
Lewis H. Morgan. In his epoch-making works on _Systems of Consanguinity_
(1869) and on _Ancient Society_ (1877) he drew attention to the
remarkable fact that in the case of a number of tribes--the Red Indians
of America, the Australian black tribes, some of the polar races, and
several Asiatic tribes, mostly of Turanian race--degrees of relationship
are reckoned and distinguished by names, not as ties between
individuals, but as ties between entire groups, classes or generations.
Instead of a mother and a father a man speaks of fathers and mothers;
all the individuals of a certain group are deemed husbands or wives of
corresponding individuals of another group; sisters and brothers have to
be sought in entire generations, and not among the descendants of a
definite and common parent, and so forth. There are variations and types
in these forms of organization, and intermediate links may be traced
between unions of consanguine people--brothers and sisters of the same
blood--on the one hand, and the monogamic marriage prevailing nowadays,
on the other; but the central and most striking fact seems to be that in
early civilizations, in conditions which we should attribute to savage
and barbarian life, marriage appears as a tie, not between single pairs,
but between classes, all the men of a class being regarded as potential
or actual husbands of the women of a corresponding class. Facts of this
kind produce very peculiar and elaborate systems of relationship, which
have been copiously illustrated by Morgan in his tables. In his _Ancient
Society_ he attempted to reduce all the known forms and facts of
marriage and kinship arrangements to a comprehensive view of evolution
leading up to the Aryan, Semitic and Uralian family, as exhibiting the
most modern type of relationship.
These observations, in conjunction with Bachofen's and McLennan's
teaching on mother-right, brought about a complete change of perspective
in the comparative study of man and society. The rights of ethnologists
to have their say in regard to legal, political and social development
was forcibly illustrated from both ends, as it were. On the one hand,
classical antiquity itself proved to be a rather thin layer of human
civilization hardly sufficient to conceal the long periods of barbarism
and primitive evolution which had gone to its making. On the other hand,
unexpected combinations in regard to family, property, social order,
were discovered in every corner of the inhabited world, and our trite
notions as to the character of laws and institutions were reduced to the
rank of variations on themes which recur over and over again, but may be
and have been treated in very different ways.
There is no need to speak of the use made of ethnological material in
the wider range of anthropological and sociological studies--the works
of Tylor, Lubbock, Lippert, Spencer are in everybody's hands--but
attention must be called to the further influence of the ethnological
point of view in comparative jurisprudence. An interesting example of
the passage from one line of investigation to another, from the
historical to the anthropological line, if the expression may be used
for the sake of brevity, is presented in the works of one of the
founders of the _Zeitschrift für vgl. Rechtswissenschaft_--Franz
Bernhöft. He appears in his earlier books as an exponent of the
comparative study of Greek and Roman antiquities, more or less in the
style of Leist. Like the latter he was gradually incited to draw India
into the range of his observations, but unlike Leist, he ended by fully
recognizing the importance of ethnological evidence, and although he did
not do much original research in that direction himself, the influence
of Bachofen and of the ethnologists made itself felt in Bernhöft's
treatment of classical antiquity itself: in his _State and Law in Rome
at the Time of the Kings_ he starts from the view that patricians and
plebeians represent two ethnological layers of society--a patriarchal
Aryan and a matriarchal pre-Aryan one.
But, of course, the utmost use was made of ethnological evidence by
writers who cut themselves entirely free from the special study of
classical or European antiquities. The enthusiasm of the explorers of
new territory led them naturally to disregard the peculiar claims of
European development in the history of higher civilization. They wanted
material for a study of the _genus homo_ in all its varieties, and they
had no time to look after the minute questions of philological and
antiquarian research which had so long constituted the daily bread of
inquirers into the history of laws. The most characteristic
representative of the new methods of extensive comparison was
undoubtedly A. H. Post (1839-1895)--the author of many works, in which
he ranges over the whole domain of mankind--Hovas, Zulus, Maoris,
Tunguses, alternating in a kaleidoscopic fashion with Hindus, Teutons,
Jews, Egyptians. The order of his compositions is systematic, not
chronological or even ethnographical in the sense of grouping kindred
races together. He takes up the different subdivisions of law and traces
them through all the various tribes which present any data in regard to
them. His method is not only not bound by history, it is opposed to it.
He writes:--
"The method of comparative ethnology is different from the historical
method, inasmuch as it collects the given material from an entirely
distinct point of view. Historical investigation tries to get at the
causes of the facts of rational life by observing the development of
these facts from such as preceded them within the range of separate
kindreds, tribes and peoples. The investigation of comparative
ethnology inquires after the causes of facts in national life by
collecting identical or similar ethnological data wherever they may be
found in the world, and by drawing inferences from these materials to
identical or similar causes. This method is therefore _quite
unhistorical_. It severs things that have been hitherto regarded as
closely joined and arranges these shreds into new combinations"
(_Grundriss_, i. 14).
This is not a mere paradox, but the necessary outcome of the situation
in respect of the material used. What is being sought is not common
origin or a common stock of ideas, but recourse to similar expedients in
similar situations, and it is one of the most striking results of
ethnology that it can show how peoples entirely cut off from each other
and even placed in very different planes of development can resort to
analogous solutions in analogous emergencies. Is not the custom of the
so-called _Couvade_--the pretended confinement of the husband when a
child is born to his wife--a most quaint and seemingly recondite
ceremony? Yet we find it practised in the same way by Basques,
Californian Indians, and some Siberian tribes. They have surely not
borrowed from each other, nor have they kept the ceremony as a remnant
of the time when they formed one race: in each case, evidently the
passage from a matriarchal state to a patriarchal has suggested it, and
a very appropriate method it seems to establish the fact of fatherhood
in a solemn and graphic though artificial manner. Again, an inscription
from the Cretan town of Gortyn, published in the American _Journal of
Archaeology_ (2nd series, vol. i., 1897) by Halbherr, tells us that the
weapons of a warrior, the wool of a woman, the plough of a peasant,
could not be taken from them as pledges. We find a similar idea in the
prohibition to take from a knight his weapons, from a villein his
plough, in payment of fines, which obtained in medieval England and was
actually inserted in Magna Carta. Here also the similarity extends to
details, and is certainly not derived from direct borrowing or common
origin but from analogies of situations translating themselves into
analogies of legal thought. It may be said in a sense that for the
ethnological school the less relationship there is between the compared
groups the more instructive the comparison turns out to be.
The collection of ethnological parallels for the use of sociology and
comparative jurisprudence has proceeded in a most fruitful manner. By
the side of special monographs about single tribes or geographical
groups of tribes, such as _Kamilaroi and Kurnai_, by L. Fison & A. W.
Howitt (1880), and _The Native Tribes of Australia_, by Baldwin Spencer
& F. G. Gillen (1899), the whole range of ethnological jurisprudence was
gone through by Wilken in regard to the inhabitants of the Dutch
possessions in Asia, by M. M. Kovalevsky in regard to Caucasians, &c. As
a rule the special monographs turned out to be more successful than the
general surveys, but the interest of the special monographs themselves
depended partly on the fact that people's eyes had been opened to the
recurrence of certain widespread phenomena and types of development.
5. Ethnologists of Post's school have not had it entirely their own way,
however. Not only did their natural opponents, the philologists,
historians and jurists, reproach them with lack of critical
discrimination, with a tendency to disregard fundamental distinctions,
to wipe out characteristic features, to throw the most disparate
elements into the same pot. In their own ranks a number of conscientious
and scientifically trained investigators protested against the
haphazard manner in which the most intricate problems were treated, and
sought to evolve more definite methodical rules. P. and F. Sarrasin in
their description of the Ceylon Veddahs showed a most primitive race
scattered in small clusters, monogamous and patriarchal in their
marriage customs and systems of relationship. E. A. Westermarck
challenged the sweeping generalizations indulged in by many ethnologists
about primitive promiscuity in sexual relations and the necessary
passage of all human tribes through the stages of matriarchy and group
marriage.
A very interesting departure was attempted by Dargun in his studies on
the origin and development of property and his treatise on mother-right
and marriage by capture. His lead was followed by R. Hildebrand in the
monograph on law and custom. The principal idea of these inquirers may
be stated as follows. We must utilize ethnological as well as historical
materials from the whole world, but it is no use doing this
indiscriminately. Fruitful comparisons may be instituted mainly in the
case of tribes on the same level in their general culture and especially
their economic pursuits. Hunting tribes must be primarily compared with
other hunters, fishers with fishers, pastoral nations with pastoral
nations, agriculturists with agriculturists; nations in transitional
stages from one type of culture to the other have to be grouped and
examined by themselves. The result would be to establish certain
parallel lines in the development of institutions and customs. From this
point of view both Dargun and Hildebrand attacked the prevailing theory
of primitive communism and insisted on the atomistic individualism of
the rudimentary civilization of hunting tribes. Collectivism in the
treatment of ownership, common field husbandry, practices of joint
holdings, co-aration, common stores, &c., make their appearance
according to Dargun in consequence of the drawing together of scattered
groups and smaller independent settlements. An evolution of the same
kind leading from loose unions around mothers through marriage by
capture to patriarchal kindreds was traced in the history of
relationship. Grosse (_Die Formen der Familie und der Wirtschaft_, 1896)
followed in a similar strain. Another line of criticism was opened up
from the side of exact sociological study. Its best exponent is
Steinmetz, who represents with Wilken the Dutch group of investigators
of social phenomena. He takes up a standpoint which severs him entirely
from the linguistic and historic school. In a discourse on the _Meaning
of Sociology_ (p. 10) he expresses himself in the following words: "One
who judges of the social state of the Hindus by the book of Manu takes
the ideal notions of one portion of the people for the actual conditions
of all its parts." In regard to jurisprudence he distinguishes carefully
between art and science. "Jurisprudence in the wider sense is an art,
the art of framing rules for social intercourse in so far as these rules
can be put into execution by the state and its organs, as well as the
art of interpreting and applying these rules. In another sense it is
pure science, the investigation of all consciously formulated and
actually practised rules, and of their conditions and foundations, in
fact of the entire social life of existing and bygone nations, without a
knowledge and understanding of which a knowledge and understanding of
law as its outcome is, of course, impossible." In this sense
jurisprudence is a part of ethnology and of the comparative history of
culture. But in order to grapple with such a tremendous task comparative
jurisprudence has not only to call to help the study of scattered
ethnological facts. This is not sufficient to widen the frame of
observation and to realize the relative character of the principles with
which practical lawyers operate, without ever putting in question their
general acceptance or logical derivations. Ethnological studies
themselves have to look for guidance to psychology, especially to the
psychology of emotional life and of character. Although these branches
of psychological science have been much less investigated than the study
of intellectual processes, they still afford material help to the
ethnologist and the comparative jurist; and Steinmetz himself made a
remarkable attempt to utilize a psychological analysis of the feelings
of revenge in his _Origins of Punishment_.
6. The necessity of employing more stringent standards of criticisms and
more exact methods is now recognized, and it is characteristic that the
foremost contemporary representative of comparative jurisprudence,
Joseph Kohler of Berlin, principal editor of the _Zeitschrift für vgl.
Rechtswissenschaft_, often gives expression to this view. Beginning with
studies of procedure and private law in the provinces of Germany where
the French law of the Code Napoléon was still applied, he has thrown his
whole energy into monographic surveys and investigations in all the
departments of historical and ethnological jurisprudence. The code of
Khammurabi and the Babylonian contracts, the ancient Hindu codes and
juridical commentaries on them, the legal customs of the different
tribes and provinces of India, the collection and sifting of the legal
customs of aborigines in the German colonies in Africa, the materials
supplied by investigators of Australian and American tribes, the history
of legal customs of the Mahommedans, and numberless other points of
ethnological research, have been treated by him in articles in his
_Zeitschrift_ and in other publications. Comprehensive attempts have
also been made by him at a synthetic treatment of certain sides of the
law--like the law of debt in his _Shakespeare vor dem Forum der
Jurisprudenz_ (1883) or his _Primitive History of Marriage_. Undoubtedly
we have not to deal in this case with mere accumulation of material or
with remarks on casual analogies. And yet the importance of these works
consists mainly in their extensive range of observation. The critical
side is still on the second plane, although not conspicuously absent as
in the case of Post and some of his followers. We may sympathize
cordially with Kohler's exhortation to work for a universal history of
law without yet perceiving clearly what the stages of this universal
history are going to be. We may acknowledge the enormous importance of
Morgan's and Bachofen's discoveries without feeling bound to recognize
that all tribes and nations of the earth have gone substantially through
the same forms of development in respect of marriage custom, and without
admitting that the evidence for a universal spread of group-marriage has
been produced. Altogether the reproach seems not entirely unfounded that
investigations of this kind are carried on too much under the sway of a
preconceived notion that some highly peculiar arrangement entirely
different from what we are practising nowadays--say sexual promiscuity
or communism in the treatment of property--must be made out as a
universal clue to earlier stages of development. Kohler's occasional
remarks on matters of method (e.g. _Zeitschift für vgl.
Rechtswissenschaft_, xii. 193 seq.) seem hardly adequate to dispel this
impression. But in his own work and in that of some of his compeers and
followers, J. E. Hitzig, Hellwig, Max Huber, R. Dareste, more exact
forms and means of inquiry are gradually put into practice, and the
results testify to a distinct heightening of the scientific standard in
this group of studies on comparative jurisprudence. Especially
conspicuous in this respect are three tendencies: (a) the growing
disinclination to accept superficial analysis between phenomena
belonging to widely different spheres of culture as necessarily produced
by identical causes (e.g. Darinsky's review of Kovalevsky's assumptions
as to group marriage among the Caucasian tribes, _Z. für vgl. Rw._, xiv.
151 seq.); (b) the selection of definite historical or ethnological
territories for monographic inquiries, in the course of which
arrangements observed elsewhere are treated as suggestive material for
supplying gaps and starting possible explanations: Kohler's own
contributions have been mainly of this kind; (c) the treatment of
selected subjects by an intensive legal analysis, bringing out the
principles underlying one or the other rule, its possible
differentiation, the means of its application in practice, &c.:
Hellwig's monograph on the right of sanctuary in savage communities
(_Das Asylrecht der Naturvölker_) may be named in illustration of this
analytical tendency. Altogether, there can be no doubt that the stage
has been reached by comparative jurisprudence when, after a hasty, one
might almost say a voracious consumption of materials, investigators
begin to strive towards careful sifting of evidence and a conscious
examination of methods and critical rules which have to be followed in
order to make the investigations undertaken in this line worthy of
their scientific aims. Until the latter has been done many students,
whose trend of thought would seem to lead them naturally into this
domain, may be repelled by the uncritical indistinctness with which mere
analogies are treated as elusive proofs by some of the representatives
of the comparative school. F. W. Maitland, for instance, was always kept
back by such considerations.
7. It is desirable, in conclusion, to review the entire domain of
comparative jurisprudence, and to formulate the chief principles of
method which have to be taken into consideration in the course of this
study. It is evident, to begin with, that a scientific comparison of
facts must be directed towards two aims--towards establishing and
explaining similarity, and towards enumerating and explaining
differences. As a matter of fact the same material may be studied from
both points of view, though logically these are two distinct processes.
(a) Now at this initial stage we have already to meet a difficulty and
to guard against a misconception: we have namely to reckon with the
_plurality of causes_, and are therefore debarred from assuming that
wherever similar phenomena are forthcoming they are always produced by
identical causes. Death may be produced by various agents--by sickness,
by poison, by a blow. The habit of wearing mourning upon the death of a
relation is a widespread habit, and yet it is not always to be ascribed
to real or supposed grief and the wish to express it in one's outward
get-up. Savage people are known to go into mourning in order to conceal
themselves from the terrible spirit of the dead which would recognize
them in their everyday costume (Jhering, _Der Zweck im Recht_, 2nd ed.,
1884-1886). This is certainly a momentous difficulty at the start, but
it can be greatly reduced and guarded against in actual investigation.
In the example taken we are led to suppose different origin because we
are informed as to the motives of the external ceremony, and thus we are
taught to look not only to bare facts, but to the psychological
environment in which they appear. And it is evident that the greater the
complexity of observed phenomena, the more they are made up of different
elements welded into one sum, the less probability there is that we have
to do with consequences derived from different causes. The recurrence of
group-marriage in Australia and among the Red Indians of North America
can in no way be explained by the working of entirely different
agencies. And it may be added that in most cases of an analysis of
social institutions the limits of human probability and reasonable
assumption do not coincide with mathematical possibility in any sense.
When we register our facts and causes in algebraic forms, marking the
first with _a_, _b_, _c_, and the latter with _x_, _y_, _z_, we are apt
to demand a degree of precision which is hardly ever to be met with in
dealing with social facts and causes. Let us rest content with
reasonable inferences and probable explanations.
(b) The easiest way of explaining a given similarity is by attributing
it to a direct _loan_. The process of reception, of the borrowing of one
people from the other, plays a most notable part in the history of
institutions and ideas. The Japanese have in our days engrafted many
European institutions on their perfectly distinct civilization; the
Germans have used for centuries what was termed euphemistically the
Roman law of the present time (_heutiges römisches Recht_); the Romans
absorbed an enormous amount of Greek and Oriental law in their famous
jurisprudence. A check upon explanation by direct loan will, of course,
lie in the fact that two societies are entirely disconnected, so that it
comes to be very improbable that one drew its laws from the other.
Although migrations of words, legends, beliefs, charms, have been shown
by Theodor Benfey and his school to range over much wider areas than
might be supposed on the face of it, still, in the case of law, in so
far as it has to regulate material conditions, the limits have perhaps
to be drawn rather narrowly. In any case we shall not look to India in
order to explain the burning of widows among the negroes of Africa; the
_suttee_ may be the example of this custom which happens to be most
familiar to us, but it is certainly not the only root of it on the
surface of the earth.
It is much more difficult to make out the share of direct borrowing in
the case of peoples who might conceivably have influenced one another. A
hard and fast rule cannot be laid down in such cases, and everything
depends on the weighing of evidence and sometimes on almost instinctive
estimates. The use of a wager for the benefit of the tribunal in the
early procedure of the Romans and Greeks, the _sacramentum_ and the
[Greek: prutaneia], with a similar growth of the sum laid down by the
parties in proportion to the interests at stake, has been explained by a
direct borrowing by the Romans from the Greeks at the time of the Twelve
Tables legislation (Hofmann, _Beiträge zur Geschichte des griechischen
und römischen Rechts_). No direct proof is available for this
hypothesis, and the question in dispute might have lain for ever between
this explanation and that based on the analogous development in the two
closely related branches of law. The further study of the legal
antiquities of other branches of the Aryan race leads one to suppose,
however, that we have actually to do with the latter and not with the
former eventuality. Why should the popular custom of the _Vzdání_ in
Bohemia (Kapras, "Das Pfandrecht in altböhmischen Landrecht," _Z. für
vgl. R.-wissenschaft_, xvii. 424 seq.), regulating the wager of
litigation in the case of two parties submitting their dispute to the
decision of a public tribunal, turn out to be so similar to the Greek
and the Roman process? And the Teutonic Wedde would further countenance
the view that we have to do in this case with analogous expediency or,
possibly, common origin, not loans. But while dwelling on considerations
which may disprove the assumption of direct loans, we must not omit to
mention circumstances that may render such an assumption the best
available explanation for certain points of similarity. We mean
especially the recurrence of special secondary traits not deducible from
the nature of the relations compared. Terminological parallels are
especially convincing in such cases. An example of most careful
linguistic investigation attended by important results is presented by
W. Thomsen's treatment of the affinities between the languages and
cultures of the peoples of northern and eastern Europe. Taking the
indications in regard to the influence of Germanic tribes on Finns and
Lapps, we find, for instance, that the Finnish race has stood for some
1500 or 2000 years under "the influence of several Germanic
languages--partly of a more ancient form of Gothic than that represented
by Ulfilas, partly of a northern (Scandinavian) tongue and even possibly
of a common Gothic-northern one." The importance of these linguistic
investigations for our subject becomes apparent when we find that a
series of most important legal and political terms has been imported
from Teutonic into Finnish. For example, the Finnish _Kuningas_, "king,"
comes from a Germanic root illustrated by O. Norse _konung_, O. H. Ger.
_chuning_, A.-S. _cyning_, Goth. _thiudans_. The Finnish _valta_,
"power," "authority," is of Germanic origin, as shown by O. N. _vald_,
Goth. _valdan_. The Finnish _kihla_, a compact secured by solemn
promise, is akin with O. N. _gisl_, A.-S. _gisel_, O. H. Ger. _gisal_,
"hostage." The explanation for Finnish _vuokra_, "interest," "usury," is
to be found in Gothic _vokrs_, O. N. _okr_, Ger. _Wucher_, &c. (W.
Thomsen, _Über den Einfluss der germanischen Sprachen auf die
Finnisch-lappischen_, trans. E. Sievers, 1870, p. 166 seq.; cf. W.
Thomsen, _The Relations between Ancient Russia and Scandinavia and the
Origin of the Russian State_, p. 127 seq.; Miklosich, "Die Fremdwörter
in den slavischen Sprachen," _Denkschriften der Wiener Akademie_, Ph.
hist. Klasse, XV.).
(c) The next group of analogies is formed by cases which may be reduced
to _common origin_. In addition to what has already been said on the
subject in connexion with the literature of the historical school, we
must point out that in the case of kindred peoples this form of
derivation has, of course, to be primarily considered. This is
especially the case when we have to deal with the original stock of
cultural notions of a race, and when analogies in the framing and
working of institutions and legal rules are supported by linguistic
affinities. The testimony of the Aryan languages in regard to terms
denoting family organization and relationship can in no way be
disregarded, whatever our view may be about the most primitive stages
of development in this respect. The fact that the common stock of Aryan
languages and of Aryan legal customs points to a patriarchal
organization of the family may be regarded as established, and it is
certainly an important fact drawn from a very ancient stage of human
history, although there are indications that still more primitive
formations may be discovered.
Inferences in the direction of common origin become more doubtful when
we argue, not that certain facts proceed from a common stock of notions
embodied in the early culture of a race before it was broken up into
several branches, but that they have to be accounted for as instances of
a similar treatment of legal problems by different peoples of the same
ethnic family. The only thing that can be said in such a case is that,
methodically, the customs of kindred nations have the first claim to
comparison. It is evident that in dealing with blood feud, composition
for homicide, and the like, among the Germans or Slavs, the evidence of
other Aryan tribes has to be primarily studied. But it is by no means
useless for the investigator of these problems to inform himself about
the aspect of such customs in the life of nations of other descent, and
especially of savage tribes. The motives underlying legal rules in this
respect are to a large extent suggested by feelings and considerations
which are not in any way peculiarly Aryan, and may be fully illustrated
from other sources, as has been done e.g. in Steinmetz's _Origins of
Punishment_.
(d) This leads to the consideration of what maybe called _disconnected
analogies_. They are instructive in so far as they go back, not to any
continuous development, but to the fundamental, psychological and
logical unity of human nature. In similar circumstances human beings are
likely to solve the same problems in the same way. Take a rather late
and special case. In the Anglo-Saxon laws of Ine, a king who lived in
the 7th century, it is enacted that no landowner should be allowed to
claim personal labour service from his tenants unless he provides them
not merely with land, but with their homesteads. Now an exactly similar
rule is found in the statement of rural by-laws to be enforced on great
domains in Africa, which had been taken over by the imperial fiscus--the
Lex Manciana (cf. Schulten, _Lex manciana_). There is absolutely no
reason for assuming a direct transference of the rule from one place to
the other: it reflects considerations of natural equity which in both
cases were directed against similar encroachments of powerful landowners
on a dependent peasant population. In both instances government
interfered to draw the line between the payment of rent and the
performance of labour, and fastened on the same feature to fix the
limit, namely, on the difference between peasants living in their own
homes and those who had been settled by the landowner on his farms. Of
such analogies, the study of savage life presents a great number, e.g.
the widely spread practices of purification by ordeal (H. C. Lea,
_Superstition and Force_).
(e) Organizing thought always seeks to substitute order for chaotic
variety. Observations as to disconnected analogies lead to attempts to
systematize them from some comprehensive point of view. These attempts
may take the shape of a theory of _consecutive stages_ of development.
Similar facts appear over and over again in ethnological and antiquarian
evidence, because all peoples and tribes, no matter what their race and
geographical position, go through the same series of social
arrangements. This is the fundamental idea which directed the researches
of Maine, McLennan, Morgan, Post, Kohler, although each of these
scholars formulated his sequence of stages in a peculiar way. McLennan,
for instance, puts the idea referred to in the following words:--
"In short, it is suggested to us, that the history of human society is
that of a development following very slowly one general law, and that
the variety of forms of life--of domestic and civil institution--is
ascribable mainly to the unequal development of the different sections
of mankind.... The first thing to be done is to inform ourselves of
the facts relating to the least developed races. To begin with them is
to begin with history at the farthest-back point of time to which,
except by argument and inference, we can reach. Their condition, as
it may to-day be observed, is truly the most ancient condition of man"
(_Studies in Ancient History_, 2nd series, 9, 15).
On this basis we might draw up tables of consecutive stages, of which
the simplest may be taken from Post:--
"Four types of organization: the tribal, the territorial, the
seignorial, and the social. The first has as its basis marriage and
relationship by blood; the second, neighbouring occupation of a
district; the third, patronage relations between lord and dependants;
the fourth, social intercourse and contractual relations between
individual personalities" (Post, _Grundriss_, i. 14).