Popular Science Monthly/Volume 17/September 1880/The Science of Comparative Jurisprudence






AN unbeliever in the possibilities of an exact historical science. Mr. Goldwin Smith, has said that history is like a child's box of letters, out of which we may spell whatsoever we please. As illustrative of his meaning, he might have taken the works of any of the old jurists, say Domat or Blackstone, for instance, and shown that that which they called history was too apt to be nothing more than a succession of ingenious but not always happy guesses. Writing upon the history of law, they used only such facts as squared with their preconceived philosophy of law—which philosophy, in its turn, was only another and slightly modified form of their dogmatic theology, from which it was a series of deductions. We owe the old legists, from the time of Gaius to that of Blackstone, a vast debt which we can never pay; but it is for the body of substantive law they have left us, not for their bizarre and unscientific speculations as to the origin and philosophy of law.

In his chapter on Rousseau's "Theory of the Social Compact," Mr. John Morley says: "Signal novelties in thought are as limited as signal inventions in architectural construction. It is only one of the great changes in method that can remove the limits of the old combinations, by bringing new material and fundamentally altering the point of view." The truth of this remark is nowhere better shown than in the very matter of which we have been speaking. If we may claim to know more than our forefathers about the actual historical development of law, it is only because we have become possessed of a new historical method which has already wrought signal, if not fundamental, alterations in our point of view so far as regards the origin and early history of institutions. I of course refer to the comparative method, which Professor Freeman, one of its greatest expositors, says marks "a stage in the progress of the human mind at least as great as the revival of Greek and Latin learning." This method had already led to wonderful achievements in the fields of language and religion, when Sir Henry Sumner Maine made the first noteworthy application of it to legal history in his now famous "Ancient Law." The earliest comparative study of European and Indian institutions was in the department of philology, and served to prove to demonstration that Sanskrit, Greek, Latin, and the Teutonic languages belonged to one common stock, and that the forefathers of Vergil and Sophocles, of the authors of the "Vedas" and the "Nibelungenlied" were related by community of race. This demonstration was soon followed by a great mass of confirmatory proofs from the fields of mythology and religion, and all of this earlier work was absolutely requisite before anything like a successful essay could be made in the field of comparative jurisprudence—so true is it, in the words of Mr. Symonds, that "language and mythology form the vestibules and outer courts to Homer, Phidias, and Lycurgus." The final preparation for a complete and thorough study of comparative jurisprudence was made possible when scholars like Mr. Tylor, Mr. Spencer, and Sir John Lubbock, went a step beyond the facts furnished by Indo-European peoples, and showed that prehistoric man was, to use the words of Mr. Bagehot, "substantially a savage, like present savages, in morals, intellectual attainments, and in religion," and that the prehistoric Aryan was no exception to this rule.

And now, before we define the scope and purpose of comparative jurisprudence—and there has been some doubt as to the propriety of using this term in the sense in which I shall use it—let us determine exactly what is meant by the comparative method. For illustrations and definitions, I might refer to Müller, Pictet, Freeman, and others who have done so much for comparative science, but I turn by preference to Professor Flint, because he has, in a single short paragraph, most happily described the new method, particularly as applied to legal history. "Social phenomena," says he, "such as laws, can not be explained by merely physical phenomena of natural philosophy and chemistry. The most distinct characteristics which they possess lie in their capacities for continuous evolution and development; and it is only by the study of their evolution, by the comparison of their consecutive states, and of each state with the coexisting general condition of society, that we can rationally hope to reach an adequate knowledge of their laws." This method, then, requires not only the study of English, ancient and modern Roman, Greek, and Hindoo law, but the study of the history of each; and not this alone, but the comparison of each with all of the others in such manner as accurately to learn their relations to each other, and to be able to mark off with something of precision those laws and political institutions which originally they all possessed in common, and which might fairly be denominated Aryan law. This method implies the study of law upon both its statical and its progressive sides, and discloses the processes by which it has been developed. The disclosure of the motives and processes of legal development I regard as unquestionably the most valuable of the fruits of comparative jurisprudence, for just behind them lies that subtile lex legum which has eluded the grasp of so many imaginative system builders, but which is eventually destined to be as familiar learning to the scientific jurist as Grimm's law is to the modern philologer.

It will be readily seen, from this description of the comparative method, as particularly applied to the study of legal history and philosophy, that by the term comparative jurisprudence I mean something more than is usually meant by it when used by lawyers and legislators. These latter use the term as meaning a comparison of the legal systems of distinct and highly developed societies, to the end of the facilitation of legislation and the practical improvement of the law—which I should call comparative legislation. It must be admitted that what is here spoken of as comparative jurisprudence covers an area much wider than the field of law, but it does not therefore follow, as Sir Henry Maine is inclined to believe, that it should be called by some other name. Its field is unquestionably much larger than the field of positive law—which law is, in the words of Mr. Amos, "the enforceable general commands of a state," in the words of Mr. Austin, "law set by political superiors to political inferiors"; but it is not larger than the field of law as it was in archaic society. We may admit the claim that the existence of an organized political power, a state, is a condition precedent to the existence of law as understood in a political society like our own, yet there was law before there was political society, and, although it lacked many elements of the modern idea of law, it nevertheless was the original point of departure, and to it we must look for the historical roots of the positive law of to-day. If comparative jurisprudence deals with religions, ceremonials, customs, and politics, it is because it reaches back to a time when these and law were but slightly differentiated, when law had no peculiar accent of its own apart from that of the other institutional manifestations of social life. It can no longer be doubted that the law of evolution holds good, not only of organic processes, but of all super-organic processes as well—of the development of language, art, law, religion, and political institutions, and that in the beginning they were homogeneous and incoherent. So jurisprudence is compelled to regard something more than law simply, if it is to comprehend law. It has for its subject-matter the study of the relation of the fact law to all of the other facts of society, and so it goes back of positive law and seeks its springs and motives in systems like the early Roman and the Hindoo, where rites, liturgies, prayers, moral ordinances, and what we know distinctively as civil laws, appear to be mingled in mere senseless confusion. If the sphere of comparative jurisprudence is thus rendered larger than that of any of the other comparative sciences, it is only because law is the one social fact in which all others eventually lose themselves, and those others have to be known before law can be known. So jurisprudence requires a knowledge not only, as Ahrens reminds us, of "the group of conditions necessary for the physical and spiritual development of man so far as these conditions are dependent on human will," but of physical and spiritual conditions which predetermine law, and to which man has been no voluntary party.

In seeking the causes of ultimate social phenomena, we must always look to the history of the human mind, and its conditions antecedent to those phenomena. The most archaic and I mean archaic—in point of structure rather than in point of time—as well as the most modern social facts grow out of contemporaneous habits of thought. If the institutions of the earlier time or of the less civilized people differ materially from those of our civilized states, it is mainly because of difference in conditions and methods of thought. The introduction of the history of manners and institutions into general history accomplished a great revolution in methods of historical inquiry, for it laid open the hidden springs of national strength or weakness. It was Montesquieu's good fortune to be the first to successfully demonstrate this, but later on Jouffroy saw farther back along the line of cause and effect and clearly pointed out, what Mr. Herbert Spencer has since demonstrated, namely, that the chief agent in social evolution is belief.

It is not enough, then, for the student of comparative jurisprudence to know that archaic society presents startlingly vivid contrasts to the society of our day; to know that that political society which generations of inquirers have regarded as primordial is of recent growth; that time was when there was no state, no contractual, testamentary, or proprietary right in the individual—when the whole law, as yet customary, was summed up in status and kinship. If we are to account for these things, we must account for the state of society in which they existed; and, although such inquiry is not strictly or in any sense exclusively juridical, it is nevertheless prerequisite to a thorough and trustworthy comparative jurisprudence.

In proof of the last proposition, let us trace some of the steps that have been taken in the endeavor to find the ultimate reason of ancient law. Maine first followed back laws as far as the patriarchal family, which he justly calls "the type of archaic society in all the modifications which it is capable of assuming." But he makes no endeavor to account for the family, except by reference to the power of the father. He sets it down as a primordial and inexplicable social fact. He admits that he can not regard a disinclination to accept it as such as altogether unnatural, and yet he avows that he finds nothing in the superficial passions, habits, or tendencies of thought which at all sufficiently accounts for it. He recognized the value of a knowledge of the organizing cause of the family in antiquity, but gave up the search for it as hopeless. Others, more hopeful, have succeeded where he failed, until it has now been reduced to certainty that the constituent bond of the family was neither the patria potestas, nor simple community of blood, nor natural love and affection, and that neither of these things suffices to explain its existence, but that it finds its ultimate reason in religious principle and practice. In his treatise on "Hindu Law," Mr. John D. Mayne shows that ancestor-worship is the actual governing motive of native Indian jurisprudence to this day—ancestor-worship, the same principle which Coulanges so skillfully proved to be anterior to all Aryan social institutions, and which Spencer has found to be universal among all primitive peoples and the radical principle of all known religions. Coulanges erred in making the worship of the dead a finality, just as Maine erred—an error which I believe he has partially recognized—in believing the resources of his science insufficient to penetrate behind the—patria potestas. The reason of ancestor-worship is discovered in the physical condition of primitive man, in his earliest methods of thought, his ideas of life and death, of life hereafter, and of the divine principle. Just as the student of the history of Roman law is forced to never lose sight of the patriarchal family—the nidus of those rudimentary ideas which are to the jurist what the primary crusts of the earth are to the geologist—so the student of the Aryan household must not only ever remember that its source is in the sentiment of religion, and that "the one unfailing centripetal force of archaic society" was community of worship, but he must go further, and place himself in a position to fully realize ancient habits of thought at the time when ancestor-worship was the dominant form of belief. To try to account for that belief by reasoning after our own approved methods methods—which at first seem to us to be the natural and only possible ones—is to grope hopelessly in the dark. We must make an effort to reconstruct primitive man on his intellectual side, as the paleontologist does on his anatomical side, and then to think as he thought. Here we leave our special department of laws and customs, and take up the study of general culture history; and, if in going back we lose distinctness and coherency, we shall find nevertheless the thing which shaped the thought at its birth, and that is the essential matter.

The only scholar who has as yet made any systematic and noteworthy effort to discover the causes of the primitive universality of ancestor-worship is Mr. Spencer, and his views are most worthy of attention, however liable they may be to future modification. He contends that ancestor-worship may be explained by having recourse to the ideas concerning sleep and dreams entertained by the earliest men, while they are still incapable of generalization and without any correct idea of causation and law, "lacking the very implements of developed thought." These ideas, he claims, account for primitive doctrines of immortality, which latter beget the worship of ancestors. Whether or not this theory of Spencer's, or Coulange's theory that early ideas of generation and creation afford the clew to the mystery, satisfactorily accounts for this primitive practice, the fact nevertheless remains, that the deification of the dead is the oldest religion known to men, which religion is the efficient cause of ancient social organization, the essential principle of archaic institutions, archaic morals, and archaic laws.

As to what those institutions and laws were, a simple discussion of the scope of comparative jurisprudence does not afford opportunity for inquiry. That they were utterly different from those of our own day may, however, be said. It seems to us, regarding law by the light of reason alone, that it must be somewhat more than immemorial usage, that it should acknowledge the principle of amendment and growth, and that it is something separate and distinct from religion; and yet ancient societies had an entirely different notion of it, regarding it as the revelation of some deity, hallowed by custom, and absolutely immutable in its principles, being nothing less than "religion applied to the relations of men among themselves." And so it would seem, from the reason of the thing, that there must always have been a law of contract as known to us, yet society had become far advanced in civilization before any such law was recognized and formulated. It would seem that the individual must always have held property in his own right, must always have been at liberty to dispose of it by some method of alienation during his life, and prescribed by will or testament some disposition of it after his death; and yet individual property and rights of alienation and testamentary bequest are, so to speak, new-fangled notions. In the same way we have come to regard local contiguity as the only possible basis of common political action; nevertheless, it is but yesterday that our Western world outgrew the assumption that community of worship or of blood was the sole natural ground of community in political organization. In like manner, we have been taught to believe that the individual is the necessary unit of society, and yet in all archaic societies the family is the only conceivable unit. And so the theory of relationship recognized by or law is apparently the only one which right reason can suggest; yet that theory would have appeared strange and unnatural to an ancient Brahman, or a Roman judge at the time of the Twelve Tables. Thus, "in its leading characteristics," to quote Mr. Hearn, "political, legal, religious, economic, archaic society presents a complete contrast to that in which we live. There was in it no central government, and consequently there were no political organs. There was no law to make, there was none to be executed. There were neither parliaments, nor courts of justice, nor executive officers. There was no national Church. The great bulk of property, not only as to its tenure, but as to its enjoyment, was in the hands—not of individuals, but of corporate households. There were few contracts, and no wills. Men lived according to their customs. They received their property from their fathers, and transmitted it to their heirs. They were protected, or, if need, were avenged, by the help of their kinsmen. There was, in short, neither individual nor state. The clan, or some association founded upon the model of the clan, and its subdivisions, filled the whole of our forefathers' social life."

Now, how far a knowledge of these things, as taught by comparative jurisprudence, must modify our notions of legal history, is self apparent. The great mass of speculation in the department of social science has heretofore been uniformly wrong, simply because it never spontaneously entered the modern mind that society was possible without states, kings, parliaments, and positive laws. These elements of modern social life were combined and recombined in numberless ingenious ways in the endeavor to reconstruct the past, but it was never dreamed that they must be absolutely discarded. An organized state, political sovereignty, and sanctioned laws were regarded as essential prerequisites to social existence; and, until the last generation of thinkers, there was not one who contributed a word to the philosophy of history who did not regard the state as the only possible condition of human society. It is easily seen, consequently, why Locke and Hobbes, Rousseau and Montesquieu, and the rest, were hopelessly wrong in their views concerning the origin of the state and the laws. It needed a great change in method to disclose to us their fundamental error; and now that the comparative method of historical induction is established upon a quasi-scientific basis, we are in a fair way to rectify century-old misconceptions.

Not the least of the beneficial results which are destined to follow upon the growth of a science of comparative jurisprudence is this, that we shall be taught to realize, more fully than ever before, that all of the phenomena of society, politics, religion, ethics, economics, art, are presented simultaneously by society, and constitute a plexus of interacting causes and effects, independent and yet interpenetrating one another, each of which can only be understood by the light of all.

Two other great lessons this science will be the means of teaching to the world. The first is the exact nature of the relation of custom to law; the second the exact relation of custom and law to legislation. It is obvious that, as the state is a comparatively recent formation, there must have been, as in fact there was, a time when men's conduct was not ruled by anything corresponding to what we know as the law of the state; but it did not, therefore, go uncontrolled. The force which then assumed the place as a rule of conduct which law fills among modern peoples was custom. Now, custom is wholly unlike law as defined by the analytical jurists, in these respects, namely, because first it does not imply a command from any political superior, and because it is enforced by public opinion rather than by a sovereign political power. While it is thus essentially unlike positive law, it nevertheless "furnishes both the motive and the material for law," and eventually becomes law when the state comes into existence and supplements public opinion with an authoritative sanction. Keller's statement of this is not only so happy, but so perfectly accordant with the fact, as to demand remembrance. "Legal notions," says he. "commence by being instinctively observed in the relations of life, and act upon those relations as a natural force; exactly as is the-case in regard to language and manners. But afterward organized human society draws them within the sphere of its conscience and of its freedom of action, and by its creative power gives them a positive form and a determined efficacity." Custom, then, differs from law mainly in the matter of form and sanction, not necessarily in its requirements. The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.

The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. The true jurists, the true legislators, will learn from comparative jurisprudence the lex legum of which I have spoken; will know the veneration due to those institutions and laws which are the surest exponents of national genius, while they obey implicitly the spirit of progress. Thus they will regard it as a duty to permit no legislation which is not in accord with the genius of the nation, or which would force the law to a hurried or abnormal growth.

And as comparative jurisprudence has borrowed from culture history, so will it pay back its debt to the science of social organization, and demonstrate the eternal absurdity of such schemes as those of Saint-Simon, Fourier, Proudhon, and Louis Blanc; schemes which are not only retrogressive but which contain within themselves a subtile poison hostile to the essential principles of all society. A profound comparative jurisprudence will give the death-blow to "those alchemists of thought," to use the words of Wolowski, "who imagine that society may be made to undergo a transformation between the rising and the setting of the sun."

The great movement of society has been a slow and painful progression from clan society, governed by the law of status, to political society, based upon the principle of individualism; from a society in which individual self-government was unknown, to one which first organized a single central governing power, and which has ever since been limiting that power in favor of the largest practicable individualism. The history of these changes is the history of social progress, of civilization; but it is unintelligible apart from comparative jurisprudence, which is not only the forerunner of a complete science of history, but of the true philosophy of law, which shall rise above all forms and customs, and discover to mankind the generative principle of the just and of the unjust, and make of positive law nothing less than organized justice and right. When that science has been achieved we shall, for the first time, see the real character of that actual law of nature which was undreamed of by Ulpian and Grotius, a law not disclosed to us at the beginnings of society, but only to be disclosed at its end; not while man's possibilities are unfathomed, but when he shall have grown to his noblest nature. Never may we rise to a knowledge of uniform law, uniform justice, until law and justice have manifested themselves to us in perfection, and that will be when their evolution has been completed, not before. The beginning is no nearer nature than the end, for all is nature. Whatever man has been, whatever may be, is due to a larger law, of which positive law is but a part. That law is the true law of Nature, and is knowable only by its manifestations, not by vain guessings as to its character. It can never be wholly known, for Nature discloses herself gradually, and her law will not be made manifest until the end has come.