merely, without reference to their history, or have been associated
historically with principles and institutions not really connected
with them.
The historical treatment of law displaces some very remarkable misconceptions. Peculiarities and anomalies abound in every legal system; and, as soon as laws become the special study of a professional class, some mode of explaining or reconciling them will be resorted to. One of the prehistorical ways of philosophizing about law was to account for what wanted explanation by some theory about the origin of technical words. This implied some previous study of words and their history, and is an instance of the deep-seated and persistent tendency of the human mind to identify names with the things they represent. The Institutes of Justinian abound in explanations, founded on a supposed derivation of some leading term. Testamentum, we are told, ex eo appellatur quod testatio mentis est. A testament was no doubt, in effect, a declaration of intention on the part of the testator when this was written. But the -mentum is a mere termination, and has nothing to do with mens at all. The history of testaments, which, it may be noted incidentally, has been developed with conspicuous success, gives a totally different meaning to the institution from that which was expressed by this fanciful derivation. So the perplexing subject of possessio was supposed in some way to be explained by the derivation from pono and sedeo—quasi sedibus positio. Posthumi was supposed to be a compound of post and humus. These examples belong to the class of rationalizing derivations with which students of philosophy are familiar. Their characteristic is that they are suggested by some prominent feature of the thing as it then appeared to observers—which feature thereupon becomes identified with the essence of the thing at all times and places.
Another prehistorical mode of explaining law may be described as metaphysical. It conceives of a rule or principle of law as existing by virtue of some more general rule or principle in the nature of things. Thus, in the English law of inheritance, until the passing of the Inheritance Act 1833, an estate belonging to a deceased intestate would pass to his uncle or aunt, to the exclusion of his father or other lineal ancestor. This anomaly from an early time excited the curiosity of lawyers, and the explanation accepted in the time of Bracton was that it was an example of the general law of nature: “Descendit itaque jus quasi ponderosum quid cadens deorsum recta linea vel transversali, et nunquam reascendit ea via qua descendit.” It has been suggested that the “rule really results from the associations involved in the word descent.” It seems more likely, however, that these associations explained rather than that they suggested the rule—that the omission of the lineal ancestor existed in custom before it was discovered to be in harmony with the law of nature. It would imply more influence than the reasoning of lawyers is likely to have exercised over the development of law at that time to believe that a purely artificial inference of this kind should have established so very remarkable a rule. However that may be, the explanation is typical of a way of looking at law which was common enough before the dawn of the historical method. Minds capable of reasoning in this way were, if possible, farther removed from the conceptions implied in the reasoning of the analytical jurists than they were from the historical method itself. In this connexion it may be noticed that the great work of Blackstone marks an era in the development of legal ideas in England. It was not merely the first, as it still remains the only, adequate attempt to expound the leading principles of the whole body of law, but it was distinctly inspired by a rationalizing method. Blackstone tried not merely to express but to illustrate legal rules, and he had a keen sense of the value of historical illustrations. He worked of course with the materials at his command. His manner and his work are obnoxious alike to the modern jurist and to the modern historian. He is accused by the one of perverting history, and by the other of confusing the law. But his scheme is a great advance on anything that had been attempted before; and, if his work has been prolific in popular fallacies, at all events it enriched English literature by a conspectus of the law, in which the logical connexion of its principles inter se, and its relations to historical facts, were distinctly if erroneously recognized.
While the historical method has superseded the verbal and metaphysical explanation of legal principles, it had apparently, in some cases, come into conflict with the conclusions of the analytical school. The difference between the two systems comes out most conspicuously in relation to customs. There is an unavoidable break in the analytical method between societies in which rules are backed by regulated physical force and those in which no such force exists. At what point in its development a given society passes into the condition of “an independent political society” it may not be easy to determine, for the evidence is obscure and conflicting. To the historical jurist there is no such breach. The rule which in one stage of society is a law, in another merely a rule of “positive morality,” is the same thing to him throughout. By the Irish Land Act 1881 the Ulster custom of tenant-right and other analogous customs were legalized. For the purposes of analytical jurisprudence there is no need to go beyond the act of parliament. The laws known as the Ulster custom are laws solely in virtue of the sovereign government. Between the law as it now is and the custom as it existed before the act there is all the difference in the world. To the historical jurist no such separation is possible. His account of the law would not only be incomplete without embracing the precedent custom, but the act which made the custom law is only one of the facts, and by no means the most significant or important, in the history of its development. An exactly parallel case is the legalization in England of that customary tenant-right known as copyhold. It is to the historical jurist exactly the same thing as the legalization of the Ulster tenant right. In the one case a practice was made law by formal legislation, and in the other without formal legislation. And there can be very little doubt that in an earlier stage of society, when formal legislation had not become the rule, the custom would have been legalized relatively much sooner than it actually was.
Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon them. The recognized science—and such it may now be considered to be—with which historical, or more properly comparative, jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. Legal systems are related together like languages and dialects, and the investigation in both cases brings us back at last to the meagre and obscure records of savage custom and speech. A great master of the science of language (Max Müller) has indeed distinguished it from jurisprudence, as belonging to a totally different class of sciences. “It is perfectly true,” he says, “that if language be the work of man in the same sense in which a statue, or a temple, or a poem, or a law are properly called the works of man, the science of language would have to be classed as an historical science. We should have a history of language as we have a history of art, of poetry and of jurisprudence; but we could not claim for it a place side by side with the various branches of natural history.” Whatever be the proper position of either philology or jurisprudence in relation to the natural sciences, it would not be difficult to show that laws and customs on the whole are equally independent of the efforts of individual human wills—which appears to be what is meant by language not being the work of man. The most complete acceptance of Austin’s theory that law everywhere and always is the command of the sovereign does not involve any withdrawal of laws from the domain of natural science, does not in the least interfere with the scientific study of their affinities and relationships. Max Müller elsewhere illustrates his conception of the different relations of words and laws to the individual will by the story of the emperor Tiberius, who was reproved for a grammatical mistake by Marcellus, whereupon Capito, another grammarian, observed that, if what the emperor said was not good Latin, it would soon be so.
