There is in the history of jurisprudence no more significant event than
the foundation of the historical school by Gustav Hugo and Carl von
Savigny. Jurisprudence, up to that time, was not a science, at least
not a science in the modern acceptation of the term. It was an art,
which the practical lawyer learned and employed in strict conformity
with practical traditions, without reflecting on the reasons in virtue
of which a legal norm or a social institution existed. The only part
of jurisprudence of a scientific tendency was the philosophy of law.
This latter branch had, since Hugo Grotius, emancipated itself from the
church, but it had advanced no farther than to substitute for the will
of God, to which formerly right and wrong had been traced, the principle
of human nature, and to found upon the social instincts of man a system
of natural law,—an ideal jurisprudential state by reference to which
positive laws were tested in respect of their conformity with the ideally
right and the ideally wrong. This fundamental conception of the essential
character of law was only slightly modified by the substitution of the
human reason for human nature. The rational systems of jurisprudence also
derived the state and the law from the individuality of man, especially
from the social traits of this individuality, and definite notions and
principles were thus enunciated from which state and law were deductively
constructed.
The historical school first introduced a change in all this. It afforded
the legal practitioner the possibility of seeing that the law which he
applied was the slowly ripened product of a course of development that
extended over many centuries, and it afforded the philosophical juristic
inquirer the possibility of understanding, that the law was not founded
on immutable ideas and principles, but that it was a product of the
creative mind of a nation, that this product was subjected to processes
of transformation and development, and did not admit of regulation by
the individual reason of a single philosophical inquirer. But while the
history of law has become a universally recognised discipline in the
science of jurisprudence, the application of its underlying principles
to the philosophy of law has as yet by no means been universally carried
out. On the contrary, the reason still plays an extensive rôle as
foundation and evolutionary principle; and to a great extent the history
of law and the philosophy of law still pursue their solitary ways as
independent branches of knowledge.
In recent times, through the influence of ethnology, jurisprudence has
entered on a new epoch. A new branch of the science of law has arisen in
Europe, the so-called ethnological jurisprudence, and has already found
in Germany, Austria, Italy, France, Belgium, and Holland, enthusiastic
supporters. Ethnology, as it is known, is the science that has for the
subject of its investigations the totality of phenomena of social life of
all the peoples of the earth, and which makes use, in this investigation,
of the methods of inductive inquiry exclusively employed by physical
and natural science. After the science of ethnology had advanced to a
certain point, the extension of ethnological inquiry to the domain of
jurisprudence followed as of course.
To a certain extent the investigations of the history of law had prepared
the way for ethnological jurisprudence. The inductive method was common
to both. The idea of a history of the development of law was no longer
strange to jurisprudence. Only the courage was wanting to allow the eye
to range over the legal systems of all the peoples of the globe, instead
of, as before, restricting it to very narrow limits. The historical
investigation of law began in Europe with the history of the Roman law.
Thereupon it was immediately extended to the Germanic laws of Europe, so
that now all West-European peoples possess a highly developed history of
law of their own. Recently, also, the history of Slavonic law has been
assiduously treated.
Whereas in every case here it was a question of the sources of the
laws that stood in immediate historical connection with the prevailing
systems of Europe, jurisprudential investigation was slowly extended to
more remote ethnical fields. The first impulse in this direction came
from comparative philology. This science had succeeded in tracing the
languages of extended groups of peoples back to common primitive tongues.
Among these primitive tongues the Aryan, the common original language
of the Indo-Germanic group of nations, first occupied the attention of
inquirers, and the law of this group of nations thus became the first
object of investigation of a comparative jurisprudence extending beyond
the more restricted provinces of the history of law. The provinces of
Græco-Italic, Germanic, Slavic, Celtic, Iranic, and Indian law were
investigated with respect to a common origin, and various agreements and
various deviations were discovered. In very recent times the laws of the
Armenians and the Ossetes in the Caucasus have been added to the laws of
the Aryans, and the laws of the Afghans will probably soon follow these.
A number of more remote provinces of law have also been entered upon, in
connection with theological, philological, and connate inquiries. Thus,
particularly, in connection with biblical investigation the Israelitic
law, in connection with the study of Arabic the Islamitic, in connection
with the decipherment of the hieroglyphic writings the Old-Egyptian,
in connection with the decipherment of the cuneiform inscriptions the
Soumerian and the Assyrian-Babylonian, and in connection with sinology
the law of China. In very recent times the Japanese law has also been
treated.
In the laws of all these peoples, by the side of many peculiarities, were
also found many phenomena of frequent and universal recurrence.
After the science of law had so far extended its activity in this
direction, it was a final step only that ethnological jurisprudence
took when it declared that the subject of juristic science was the
investigation of the laws of _all_ the peoples of the earth. And yet
this step was perhaps a more important one than all that had hitherto
been taken. For a considerable group of peoples had up to then been
entirely neglected by the science of law, namely the uncivilised
peoples, the so-called primitive peoples or _Naturvölker_. And just the
laws of these savages furnished the most remarkable disclosures. They
exhibited everywhere the most singular parallel phenomena, and made it
possible to open up a complete early history of the law, and to bring
to light periods of jural development of which the history of civilised
peoples has preserved but a few unintelligible remains. Ethnological
jurisprudence is thus able to supply complementary information at a point
where the threads of the history of law are lost in the obscurity of
early times.
The condition of jural life in these primitive periods is very singular.
No juristic philosopher has ever lighted on the idea that primitive man
could exist with such jural conceptions as he actually does. That which
ethnological jurisprudence has brought to light in this connection is
something absolutely new and astonishing, something that no brooding
brain could have ever developed out of any idea or principle. Indeed, it
is so strange that it could not be conceived at all if we did not have it
before our eyes to-day among savage tribes.
The collecting of the laws of uncivilised peoples constitutes an
independent task of ethnological jurisprudence. In this way the latter
science will fill up the gaps which historical jurisprudential inquiry
left open in our knowledge of the jural life of man. But more important
than all, perhaps, will ethnological jurisprudence become for the future
development of the philosophy of law. In this connection it goes hand in
hand with the sociological tendency which dominates our time and has its
surest foundation in ethnology.
The prime significance of ethnological jurisprudence lies in the fact
that it is an ethnological science.
At first ethnology was a purely empirical science. It gathered together
all the attainable phenomena of ethnic existence, and separately, at
first, among single peoples and tribes. After an extensive store of
material had accumulated in this manner, the discovery was made that
in many provinces of ethno-social life, especially in the provinces of
religion, law, and morals, especially also in all provinces of social
custom, phenomena of essentially similar character presented themselves
among a great number of peoples in the case of whom neither any original
tribal relationship nor any infusion from one nation into the other could
be assumed; and, curious to say, these were frequently the most singular
phenomena, of which one would have thought at first that they had sprung
from the individuality of a determinate people. This discovery of
universal ethnographic parallels was all the more surprising in view of
the fact that historical special inquiry, whose province up to then had
been essentially national life, had placed especial emphasis on outwardly
prominent events occurring in a different form in every nation, whereas
phenomena that appeared uniformly among the different nations were little
noticed. People had therefore grown accustomed to regard every nation as
something existing by itself and peculiar to itself, and, particularly,
had also declared it as inadmissible to employ phenomena of the life of
one nation to explain corresponding phenomena of the life of another
nation.
The discovery of ethnographical parallels led to wholly different ideas.
It became clear that a great portion of human ethnical existence was
not founded in the peculiar character of particular peoples, but in the
character of the human race, in the universal nature of man. And it
became in addition clear that that which repeated itself everywhere on
the earth, which was therefore an expression of the universal human, was
something entirely different from that which previous philosophy had
declared to be the actual human. It also became clear, at the same time,
that the nations thought quite differently from what the individual man
did. With this, however, the foundation of the entire previous philosophy
was shaken. If the axiom of modern ethnology is correct, namely that it
is not _we_ that think, but _it_ that _thinks in us_,[5] we shall no
longer be able to explain our nature from our consciousness, from our
ego, from our reason, but we shall have to pursue this momentous “It”
that thinks in us, and since we cannot find it _in_ us we shall have to
search for it _outside of_ us in the expressions of the human soul in the
life of the race.
This is the fundamental idea of modern ethnology. It seeks to collect all
the expressions of the human soul in the life of the species, and from
them to derive its inferences as to the nature of man. It regards ethnic
existence as the precipitate of human psychical existence, and not merely
of that part of it which is conscious, but also of that part of it which
is unconscious, that which is inaccessible to introspective observation,
that which is not thought, but is merely lived. It enlarges accordingly
the domain of psychology, which was restricted hitherto to the analysis
of the human consciousness, by the incorporation of an additional domain
unmeasured in extent.
These general conceptions of ethnology are also determinative for
the science of ethnological jurisprudence, and from this results its
peculiarity as contrasted with the other branches of juristic knowledge.
Ethnological jurisprudence places the centre of gravity of the science
of law not like the previous juristic philosophy in the individual jural
consciousness, but in the law viewed as a province of ethnic existence.
It regards the laws of the nations as the precipitates of that which
is now active and has been active as jural instinct in the entire
human race. It assumes that when all the phenomena of law in the life
of the nations have been fixed, an infinitely more valuable material
will be drawn therefrom adapted to the disclosure of the nature of law
than could have ever in the world been acquired by an analysis of the
individual jural consciousness. It does not regard the individual jural
consciousness as something innate in man and exempt from the altering
effects of time, but as a product of the social conditions in which the
individual has grown up. It assumes, therefore, that the individual jural
consciousness changes with a change of the social conditions, so that a
man who grows up under different social conditions possesses a different
jural perception. This assumption, if we compare the expressions of the
jural consciousness of races low in the scale of culture with those of
civilised peoples, is one that cannot be escaped. We have only to recall
to mind the irresistible force with which the jural sense of peoples
that live under clan-constitutions demand vengeance of blood, whereas
this species of retaliation no longer exists in our jural consciousness
of to-day. Thus there are hundreds and thousands of jural instincts and
conceptions which are present at certain stages of civilisation and
disappear entirely at others.
Ethnological jurisprudence therefore assumes, that the juristic
philosopher who lays at the foundation of his system essentially his own
jural consciousness, simply enunciates therewith a system of law that
answers perhaps to the current conceptions of his time and his people,
but which can in no sense lay claim to a value beyond that.
Quite different, on the other hand, are matters conditioned when the
inquirer has before him the laws of all the peoples of the earth from the
lowest to the highest. Here he has in his possession a picture of the
jural consciousness of the mind of humanity, which is no longer subject
to alteration, but which, to the extent that the development of human
jural life has advanced, is complete.
For the execution of its task ethnological jurisprudence first requires
a collection of the laws of all the peoples of the earth. Each one of
these laws is of equal value to ethnological jurisprudence in so far
as the jural consciousness of humanity has found expression in it in
any form. Especially deserving of consideration are the laws of the
so-called savage peoples that have been so much neglected and contemned
hitherto; since they bring to light the jural consciousness of humanity
in its germinal stages, and since higher formations are invariably best
understood when we know their first beginnings.
The solidest basis for ethnological jurisprudence would be furnished by
a monographic treatment of the law of every single tribe and people of
the earth. By such monographic treatments the entire social organisation
of a given tribe or people would be exhibited in all its complicated
reciprocal relations, and we should be able to follow the law in all the
thousands of minute ramifications that connect it with the remaining
provinces of national life. But such a monographic treatment of the law
of all the nations of the earth is accompanied with great difficulties,
and this part of the task of the science of law has as yet been
undertaken only to a limited extent.
The condition of affairs is best in this respect where the nations
themselves have collected and compiled their legal customs in books of
laws. But such collections are found only among peoples that deserve
to some extent the appellation of civilised peoples. Among the great
majority of peoples the law is simply practised and handed down by oral
tradition, so that here the legal customs must be collected by members
of foreign civilised nations,—a very difficult labor and one that can be
accomplished only by persons who take up their abode permanently among
the races in question and become thoroughly familiar with their language
and habits of life.
Collections of this character we possess unfortunately only to a very
limited extent, and our knowledge accordingly of the law of uncivilised
peoples is still very meagre. Even the books of law possessed by the
various peoples have not all been made available to juristic science.
In part they have not yet been printed, and in part they have not yet
been translated into a generally understood language. Considerable time
will yet be required before the existing material has been made wholly
accessible.
Not before the legal customs of all the peoples of the earth have been
collected will ethnological jurisprudence be in a position to furnish a
successful solution of the task it has set itself,—the task namely of a
causal analysis of all the phenomena of the jural life of the human race.
Yet to a certain extent this task may be undertaken at present, even with
a relatively limited store of material.
The starting-point for the ethno-juristic investigation of the phenomena
of jural life is furnished by the ethno-juristic parallels, legal customs
that are found uniformly appearing among the nations, without there being
any reason to assume that one nation has received them from another.
Legal customs of this character are in part so universally diffused
over the earth that they may be characterised as a common possession of
mankind; in part they appear sporadically among unrelated peoples; in
part they are restricted to more limited domains. The most important
legal customs are those that have universal dissemination; for here it
may be assumed that they are a necessary emanation of the social side
of human life. Legal customs that occur only sporadically, but appear
uniformly among unrelated peoples, must likewise be regarded as the
products of the universal nature of man, yet only as such that _can_
arise under definite conditions of existence. Legal customs that occur
only in limited ethnological domains will have to be referred to the
peculiar character of definite peoples and tribes. Legal institutions of
universal character are, for example, the forms of marriage by capture
and purchase of the bride, blood-vengeance, the right of refuge, the
systems of composition, ordeals, oaths, and so forth. Almost universal
are the levirate, and the betrothal of children. Sporadically among
unrelated peoples appear: the seizure of the corpse of the debtor for
debt; execution by fasting, whereby the creditor brings pressure to bear
upon his debtor by having him fast a definite period of time before his
dwelling; the custom of the chief doing combat with his grown up son,
to whom the command of the tribe passes if he conquers his father; and
so forth.[6] Frequently it is the most curious customs that thus recur,
among peoples that are completely separated from each other by oceans
and inaccessible mountain ranges and have unquestionably never been in
communication with each other.
The explanation of these ethno-juristic parallel phenomena is in part
not very difficult, inasmuch as many of them can be traced back to
fixed forms of social organisation. Thus, for example, a whole group
of universally recurring legal customs is associated with the peculiar
formation of the clan-constitutions and clan-law which regularly appears
among uncivilised peoples and characteristically differs from the form of
political organisation familiar to the present age. Many legal customs
are also based on religious conceptions and social customs, and their
explication in such cases is frequently very difficult.
A complete explanation of all the legal customs of all the peoples of
the earth with respect to their social causes would exhaust the work of
ethnological jurisprudence as an ethnological discipline. But in the
same way that the acquisitions of ethnology are in their turn utilisable
towards the constitution of a universal philosophy, to which they will
impart perhaps an entirely different character, so will the results
of ethnological jurisprudence be in their turn utilisable towards the
constitution of a universal science of law and for the philosophy of
law, in which probably, through its means also, a powerful change will
be inaugurated. These are the ideas, traced in their most general
characters, that may be regarded as the fundamental ones in “ethnological
jurisprudence.”