282
A STUDY IN ANCIENT LAW. By Gustave Ravene. I. A LEARNED institutional writer, in speaking of the origin and develop ment of Positive Law, states that, — "Positive Law, as one side of the general culture of a nation, is developed both in it and with it, in conformity with intellectual and moral conditions, and with the co-operation of that people's special external relations, and is also dependent upon the nature, the geographical position and character of the country it inhabits. The source from which Law springs is the intellectual individuality of the people, or the popular consciousness; hence its national character." Following the above definition, we have to consider the history of the nation, its exist ence in space and time, its general culture and intellectual development, if we wish to study the history of its laws. The study of the law in its origin, early his tory, and development is that part of Psychol ogy known as Anthropology; and here again it is classed in the subdivision Sociology. Anthropology studies the history of civil ization. Considering at first the physical structure of man, then the conditions of his physical and intellectual development, an thropology investigates the early social or ganization, and traces step by step the evolution of institutions. To study the development of law, other materials are needed besides historical data concerning judicial decisions and legislative enactments. We have to study the early condition of mankind, the races of man, their distribution and history, especially that of the Aryan race; then investigate the laws of the Ancients, as revealed to us by tradi tion, record, and contemporaneous literature; collect the known laws of primitive races, examining their history by the light of an thropological research; then trace out the
relations of those early and primitive in stitutions to the intellectual development of the nation; and finally, arrange the laws in accordance with the then prevalent modes of thought. The days when history was biographical and chronological narrative, and historians stated the facts of social growth in the form of chronological sequence, belong to the past. To-day the writers on history, and especially the philosophers whose attention is directed to the study of social phenomena, have to devote deep and persevering research, not only to the accumulation of data, the arrange ment of historical facts, but principally to the discovery and exposition of the funda mental underlying laws and prevailing con ditions to which the political existence and development of mankind is due. Society is an organism; and its functions, however complex, are under the dominion of an unchanging law of development Society, like man and all animal creation, passes through the successive stages of life, — birth, maturity, and death; and its phenomena, like those of animal existence, are the results of the conditions under which the social life exists, and its law of evolution. Man has attained to his present physical, intellectual, and moral standing, after passing through successive phases of evolution. So has society. The results of anthropological studies point to the passing of periods in which society was successively a savage, then a barbarian, and finally a civilized organiza tion. Through many thousands of years man has struggled to reach a higher level of existence, through ages he has adapted his social structure to his altered forms of life; and when he reached the plane of civilization his social organization was the product of the accumulated experience of the past, moulded in the furnace of necessity.
