Among numerous English textbooks, those specially worth mention
are: T. E. Holland, The Elements of Jurisprudence (1880;
10th ed., 1906); J. Austin, Lectures on Jurisprudence (4th ed., 1873);
W. Jethro Brown, The Austinian Theory of Law (1906); Sir F. Pollock,
A First Book on Jurisprudence (1896; 2nd ed., 1904).
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
