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 πρυτανεία, 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. gīsel, O. H. Ger. gīsal, “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
