Jurisprudence, Comparative

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 enthusiastic belief in the historical, traditional life of social groups as opposed to the intellectual conceptions of individualistic radicalism.

On the other hand, the 19th century was a scientific age and especially an age of biological science. Former periods—the 16th and 17th centuries especially—had bequeathed to it high standards of scientific investigation, an ever-increasing weight of authority in the direction of an exact study of natural phenomena and a conception of the world as ruled by laws and not by capricious interference. But these scientific views had been chiefly applied in the domain of mathematics, astronomy and physics; although great discoveries had already been made in physiology and other branches of biology, yet the achievements of 19th-century students in this respect far surpassed those of the preceding period. And the doctrine of transformation which came to occupy the central place in scientific thought was eminently fitted to co-ordinate and suggest investigations of social facts. As F. York Powell put it, Darwin is the greatest historian of modern times, and certainly an historian not in the sense of a reader of annals, but in that of a guide in the understanding of organic evolution. Though much is expressed in the one name of Darwin, it is perhaps even more momentous as a symbol of the tendency of a great age than as a mark of personal work. To this tendency we are indebted for the rise of anthropology and of sociology, of the scientific study of man and of the scientific study of society. Of course it ought not to be disregarded that the application of scientific principles and methods to human and social facts was made possible by the growth of knowledge in regard to savage and half-civilized nations called forth by the increased activity of European and American business men, administrators and explorers. Ethnography and ethnology have brought some order into the wealth of materials accumulated by generations of workers in this direction, and it is with their help that the far-reaching generalizations of modern inquirers as to man and society have been achieved.

2. It is not difficult to see that the comparative study of legal evolution finds its definite place in a scientific scheme elaborated from such points of view. Let us see how, as a matter of fact, the study in question arose and what its progress has been. The immediate incitement for the formation of comparative jurisprudence was given by the great discoveries of comparative philology. When the labours of Franz Bopp, August Schleicher, Max Müller, W. D. Whitney and others revealed the profound connexion between the different branches of the Indo-European race in regard to their languages, and showed that the development of these languages proceeded on lines which might be studied in a strictly scientific manner, on the basis of comparative observation and with the object of tracing the uniformities of the process, it was natural that students of religion, of folk-lore and of legal institutions took up the same method and tried to win similar results (Sir H. Maine, Rede lecture in Village Communities, 3rd ed.).

It is interesting to note that one of the leading scholars of the Germanistic revival in the beginning of the 19th century, Jacob Grimm, a compeer of Savigny in his own line, took up with fervent zeal and remarkable results not only the scientific study of the German language, but also that of Germanic mythology and popular law. His Rechtsalterthümer are still unrivalled as a collection of data as to the legal lore of Teutonic tribes. Their basis is undoubtedly a narrow one: they treat of the varieties of legal custom among the continental Germans, the Scandinavians and the Germanic tribes of Great Britain, but the method of treatment is already a comparative one. Grimm takes up the different subjects—property, contract, procedure, succession, crime, &c.—and examines them in the light of national, provincial and local customs, sometimes noticing expressly affinities with Roman and Greek law (e.g. the subject of imprisonment for debt, Rechtsalterthümer, 4th ed., vol. ii., p. 165).

A broader basis was taken up by a linguist who tried to trace the primitive institutions and customs of the early Aryans before their separation into divers branches. Adolphe Pictet (Les Origines indo-européennes, i. 1859; ii. 1863) had to touch constantly on questions of family law, marriage, property, public authority, in his attempt to reconstruct the common civilization of the Aryan race, and he did so on the strength of a comparative study of terms used in the different Indo-European languages. He showed, for instance, how the idea of protection was the predominant element in the position of the father in the Aryan household. The names pîtar, pater, πατήρ, father, which recur in most branches of the Aryan race, go back to a root pā-, pointing to guardianship or protection. Thus we are led to consider the patria potestas, so stringently formulated in Roman law, as an expression of a common Aryan notion, which was already in existence before the Aryan tribes parted company and went their different ways. Descriptions of Aryan early culture have been given several times since in connexion with linguistic observations. An example is W. E. Hearn’s Aryan Household (1879). Fustel de Coulanges’ famous volume on the ancient city and Rudolf von Jhering’s studies of primitive Indo-European institutions (Vorgeschichte der Indoeuropäer) start from similar observations, although the first of these scholars is chiefly interested in tracing the influence of religion on the material arrangements of life, while the latter draws largely on principles of public and private law, studied more especially in Roman antiquity.

3. The chief work in that direction has been achieved in one sense by a German scholar, B. W. Leist. His Graeco-Roman legal history, his Jus Gentium of Primitive Aryans, and his Jus Civile of Primitive Aryans, form the most complete and learned attempt not only to reconstitute the fundamental rules of common Aryan law before the separation of tongues and nations, but also to trace the influence of this original stock of juridical ideas in the later development of different branches of the Aryan race. These three books present three stages of comparison, marked by a successive widening of the horizon. He began his legal history by putting together the data as to Roman and Greek legal origins; in the Alt-arisches Jus Gentium the material of Hindu law is not only drawn into the range of observation, but becomes its very centre; in the Alt-arisches Jus Civile the legal customs of the Zend branch, of Celts, Germans and Slavs, are taken into account, although the most important part of the inquiry is still directed to the combination of Hindu, Greek and Roman law. In this way Leist builds up his theories by the comparative method, but he restricts its use consciously and consistently to a definite range. He does not want to plunge into haphazard analogies, but seeks common ground before all things in order to be able to watch for the appearance of ramifications and to explain them. According to his view comparison is of use only between “coherent” lines of facts. Common origin, not similarity of features, appears to him as the fundamental basis for fruitful comparison. It may be said that Leist’s work is characterized by the attempt to draw up a continuous history of a supposed archaic common law of the Aryan race rather than to put different solutions of kindred legal problems by the side of each other. For him Aryan tribal organization with its double-sided relationship—cognatic and agnatic—through men and through women—is one, and although he does not draw its picture as Fustel de Coulanges does by the help of traits taken indiscriminately from Hindu, Roman and Greek material, although he notices divisions, degrees and variations, at bottom he writes the history of one set of principles exemplified and modulated, as it were, in the six or seven main varieties of the race. Even so the nine rules of conduct prescribed by Hindu sacral law are, according to his view, the directing rules of Roman, Greek, Germanic, Celtic, Slavonic legal custom—the duties in regard to gods, parents and fatherland, guests, personal purity, the prohibitions against homicide, adultery and theft—are variations of one and the same religious, moral and legal system, and their original unity is reflected and proved by the unity of legal terminology itself.

The same leading idea is embodied in the books of Otto Schräder—Urgeschichte und Sprachvergleichung (1st ed., 1883; 2nd ed., 1890) and Reallexikon der indogermanischen Altertumskunde (1901). In this case we have to do not with a jurist but with a linguist and a student of cultural history. His training made him especially fit to trace the national affinities in the data of language, and the sense of the intimate connexion between the growth of institutions on one side, of words and linguistic forms on the other, underlies all his investigations. But Schrader testifies also to another powerful influence—to that of Victor Hehn, the author of a remarkable book on early civilization, Kulturpflanzen und Hausthiere in ihrem Übergang aus Asien in Europa (1st ed., 1870; 7th ed., 1902), dealing with the migrations of tribes and their modes of acquiring material civilization. Although the linguistic and archaeological sides naturally predominate in Schrader’s works, he has constantly to consider legal subjects, and he strives conscientiously to obtain a clear and common-sense view of the early legal notions of the Aryans. Speaking of the “ordeals,” the “waging of God’s law,” for example, he traces the customs of purification by fire, water, iron, &c., to the practice of oaths (Sans. am; Gr. ὄμνυμι; O. Ital. omr = first group; O. Ger. aiþs, Ir. óeth = second group; O. Norse rota, Arm. erdnum = I swear = third group). The central idea of the ordeal is thus shown to be the imprecation—“Let him be cursed whose assertion is false.”

The comparative study of the Aryan group assumed another aspect in the works of Sir Henry Maine. He did not rely on linguistic affinities, but made great use of another element of investigation which plays hardly any part in the books of the writers mentioned hitherto. His best personal preparation for the task was that he had not only taught law in England, but had come into contact with living legal customs in India. For him the comparison between the legal lore of Rome and that of India did not depend on linguistic roots or on the philological study of the laws of Manu, but was the result of recognizing again and again, in actual modern custom, the views, rules and institutions of which he had read in Gaius or in the fragments of the Twelve Tables. The sense of historical analogy and evolution which had shown itself already in the lectures on Ancient Law, which, after all, were mainly a presentment of Roman legal history mapped out by a man of the world, averse from pedantic disquisitions. But what appears as the expression of Maine’s personal aptitude and intelligent reading in Ancient Law gets to be the interpretation of popular legal principles by modern as well as by ancient instances of their application in Village Communities, The Early History of Institutions, Early Law and Custom. The evolution of property in land out of archaic collectivism, ancient forms of contract and compulsion, rudimentary forms of feudalism and the like, were treated in a new light in consequence of systematic comparisons with the conditions not only of India but of southern Slavonic nations, medieval celts and Teutons. This breadth of view seemed startling when the lectures appeared, and the original treatment of the subject was hailed on all sides as a most welcome new departure in the study of legal customs and institutions. And yet Maine set very definite boundaries to his comparative surveys. He renounced the chronological limitation confining such inquiries to the domain of antiquaries, but he upheld the ethnographical limitation confining them to laws of the same race. In his case it was the Aryan race, and in his Law and Custom he opposed in a determined manner the attempts of more daring students to extend to the Aryans generalizations drawn from the life of savage tribes unconnected with the Aryans by blood.

Thus, notwithstanding all diversities in the treatment of particular problems, one leading methodical principle runs through the works of all the above-mentioned exponents of comparative study. It was to proceed on the basis of common origin and on the assumption of a certain common stock of language, religion, material culture, and law to start with. What Pictet, Leist, Schrader, and Maine were doing for the Aryans, F. Hommel, Robertson Smith and others did in a lesser degree for the Semitic race.

4. The literary group which started from the discoveries of comparative philology and history was met on the way by what may be called the ethnological school of inquirers. The original impetus was given, in this case, by jurists and historians who took up the study in the field of ancient history, but treated it from the beginning in such a way as to break up the subdivisions of historic races and to direct the inquiry to a state of culture best illustrated by savage customs. The first impulse may be said to have come from J. J. Bachofen (Mutterrecht, 1861; Antiquarische Briefe, 1880; Die Sage von Tanaquil). All the representatives of Aryan antiquities are at one in laying stress on the patriarchal and agnatic system of the kindreds in the different Aryan nations; even Leist, although dwelling on the importance of cognatic ties, looks to agnatic relationship for the explanation of military organization and political authority. And undoubtedly, if we argue from the predominant facts and from the linguistic evidence of parallel terms, we are led to assume that already before their separation the Aryans lived in a patriarchal state of society. Now, Bachofen discovered in the very tradition of classical antiquity traces of a fundamentally different state of things, the central conception of which was not patriarchal power, but maternity, relationship being traced through mothers, the wife presenting the constant and directing element of the household, while the husband (and perhaps several husbands) joined her from time to time in more or less inconstant unions. Such a state of society is definitely described by Herodotus in the case of the Lycians, it is clearly noticeable even in later historical times in Sparta; the passage from this matriarchal conception to the recognition of the claims of the father is reflected in poetical fiction in the famous Orestes myth, based on the struggle between the moral incitement which prompted the son to avenge his father and the absolute reverence for the mother required by ancient law. Although chiefly drawing his materials from classical literature, Bachofen included in his Antiquarian Letters an interesting study of the marriage custom and systems of relationship of the Malabar Coast in India; they attracted his attention by the contrasts between different layers of legal tradition—the Brahmans living in patriarchal order, while the class next to them, the Nayirs (Nairs), follow rules of matriarchy.

Similar ideas were put forward in a more comprehensive form by J. F. McLennan. His early volume (Studies in Ancient History, 1876) contains several essays published some time before that date. He starts from the wide occurrence of marriage by capture in primitive societies, and groups the tribes of which we have definite knowledge into endogamous and exogamous societies according as they take their wives from among the kindred or outside it. Marriage by capture and by purchase are signs of exogamy, connected with the custom in many tribes of killing female offspring. The development of marriage by capture and purchase is a powerful agent in bringing about patriarchal rule, agnatic relationship, and the formation of clans or gentes, but the more primitive forms of relationship appear as variations of systems based on mother-right. These views are supported by ethnological observations and used as a clue to the history of relationship and family law in ancient Greece. In further contributions published after McLennan’s death these researches are supplemented and developed in many ways. The peculiarities of exogamous societies, for instance, are traced back to the even more primitive practice of Totemism, the grouping of men according to their conceptions of animal worship and to their symbols. McLennan’s line of inquiry was taken up in a very effective manner not only by anthropologists like E. B. Tylor or A. Lang, but also in a more special manner by students of primitive family law. One of the most brilliant monographs in this direction is Robertson Smith’s study of Kinship and Marriage in Arabia.

But perhaps the most decisive influence was exercised on the development of the ethnological study of law by the discoveries of an American, Lewis H. Morgan. In his epoch-making works on Systems of Consanguinity (1869) and on Ancient Society (1877) he drew attention to the remarkable fact that in the case of a number of tribes—the Red Indians of America, the Australian black tribes, some of the polar races, and several Asiatic tribes, mostly of Turanian race—degrees of relationship are reckoned and distinguished by names, not as ties between individuals, but as ties between entire groups, classes or generations. Instead of a mother and a father a man speaks of fathers and mothers; all the individuals of a certain group are deemed husbands or wives of corresponding individuals of another group; sisters and brothers have to be sought in entire generations, and not among the descendants of a definite and common parent, and so forth. There are variations and types in these forms of organization, and intermediate links may be traced between unions of consanguine people—brothers and sisters of the same blood—on the one hand, and the monogamic marriage prevailing nowadays, on the other; but the central and most striking fact seems to be that in early civilizations, in conditions which we should attribute to savage and barbarian life, marriage appears as a tie, not between single pairs, but between classes, all the men of a class being regarded as potential or actual husbands of the women of a corresponding class. Facts of this kind produce very peculiar and elaborate systems of relationship, which have been copiously illustrated by Morgan in his tables. In his Ancient Society he attempted to reduce all the known forms and facts of marriage and kinship arrangements to a comprehensive view of evolution leading up to the Aryan, Semitic and Uralian family, as exhibiting the most modern type of relationship.

These observations, in conjunction with Bachofen’s and McLennan’s teaching on mother-right, brought about a complete change of perspective in the comparative study of man and society. The rights of ethnologists to have their say in regard to legal, political and social development was forcibly illustrated from both ends, as it were. On the one hand, classical antiquity itself proved to be a rather thin layer of human civilization hardly sufficient to conceal the long periods of barbarism and primitive evolution which had gone to its making. On the other hand, unexpected combinations in regard to family, property, social order, were discovered in every corner of the inhabited world, and our trite notions as to the character of laws and institutions were reduced to the rank of variations on themes which recur over and over again, but may be and have been treated in very different ways.

There is no need to speak of the use made of ethnological material in the wider range of anthropological and sociological studies—the works of Tylor, Lubbock, Lippert, Spencer are in everybody’s hands—but attention must be called to the further influence of the ethnological point of view in comparative jurisprudence. An interesting example of the passage from one line of investigation to another, from the historical to the anthropological line, if the expression may be used for the sake of brevity, is presented in the works of one of the founders of the Zeitschrift für vgl. Rechtswissenschaft—Franz Bernhöft. He appears in his earlier books as an exponent of the comparative study of Greek and Roman antiquities, more or less in the style of Leist. Like the latter he was gradually incited to draw India into the range of his observations, but unlike Leist, he ended by fully recognizing the importance of ethnological evidence, and although he did not do much original research in that direction himself, the influence of Bachofen and of the ethnologists made itself felt in Bernhöft’s treatment of classical antiquity itself: in his State and Law in Rome at the Time of the Kings he starts from the view that patricians and plebeians represent two ethnological layers of society—a patriarchal Aryan and a matriarchal pre-Aryan one.

But, of course, the utmost use was made of ethnological evidence by writers who cut themselves entirely free from the special study of classical or European antiquities. The enthusiasm of the explorers of new territory led them naturally to disregard the peculiar claims of European development in the history of higher civilization. They wanted material for a study of the genus homo in all its varieties, and they had no time to look after the minute questions of philological and antiquarian research which had so long constituted the daily bread of inquirers into the history of laws. The most characteristic representative of the new methods of extensive comparison was undoubtedly A. H. Post (1839-1895)—the author of many works, in which he ranges over the whole domain of mankind—Hovas, Zulus, Maoris, Tunguses, alternating in a kaleidoscopic fashion with Hindus, Teutons, Jews, Egyptians. The order of his compositions is systematic, not chronological or even ethnographical in the sense of grouping kindred races together. He takes up the different subdivisions of law and traces them through all the various tribes which present any data in regard to them. His method is not only not bound by history, it is opposed to it. He writes:—

This is not a mere paradox, but the necessary outcome of the situation in respect of the material used. What is being sought is not common origin or a common stock of ideas, but recourse to similar expedients in similar situations, and it is one of the most striking results of ethnology that it can show how peoples entirely cut off from each other and even placed in very different planes of development can resort to analogous solutions in analogous emergencies. Is not the custom of the so-called Couvade—the pretended confinement of the husband when a child is born to his wife—a most quaint and seemingly recondite ceremony? Yet we find it practised in the same way by Basques, Californian Indians, and some Siberian tribes. They have surely not borrowed from each other, nor have they kept the ceremony as a remnant of the time when they formed one race: in each case, evidently the passage from a matriarchal state to a patriarchal has suggested it, and a very appropriate method it seems to establish the fact of fatherhood in a solemn and graphic though artificial manner. Again, an inscription from the Cretan town of Gortyn, published in the American Journal of Archaeology (2nd series, vol. i., 1897) by Halbherr, tells us that the weapons of a warrior, the wool of a woman, the plough of a peasant, could not be taken from them as pledges. We find a similar idea in the prohibition to take from a knight his weapons, from a villein his plough, in payment of fines, which obtained in medieval England and was actually inserted in Magna Carta. Here also the similarity extends to details, and is certainly not derived from direct borrowing or common origin but from analogies of situations translating themselves into analogies of legal thought. It may be said in a sense that for the ethnological school the less relationship there is between the compared groups the more instructive the comparison turns out to be.

The collection of ethnological parallels for the use of sociology and comparative jurisprudence has proceeded in a most fruitful manner. By the side of special monographs about single tribes or geographical groups of tribes, such as Kamilaroi and Kurnai, by L. Fison & A. W. Howitt (1880), and The Native Tribes of Australia, by Baldwin Spencer & F. G. Gillen (1899), the whole range of ethnological jurisprudence was gone through by Wilken in regard to the inhabitants of the Dutch possessions in Asia, by M. M. Kovalevsky in regard to Caucasians, &c. As a rule the special monographs turned out to be more successful than the general surveys, but the interest of the special monographs themselves depended partly on the fact that people’s eyes had been opened to the recurrence of certain widespread phenomena and types of development.

5. Ethnologists of Post’s school have not had it entirely their own way, however. Not only did their natural opponents, the philologists, historians and jurists, reproach them with lack of critical discrimination, with a tendency to disregard fundamental distinctions, to wipe out characteristic features, to throw the most disparate elements into the same pot. In their own ranks a number of conscientious and scientifically trained investigators protested against the haphazard manner in which the most intricate problems were treated, and sought to evolve more definite methodical rules. P. and F. Sarrasin in their description of the Ceylon Veddahs showed a most primitive race scattered in small clusters, monogamous and patriarchal in their marriage customs and systems of relationship. E. A. Westermarck challenged the sweeping generalizations indulged in by many ethnologists about primitive promiscuity in sexual relations and the necessary passage of all human tribes through the stages of matriarchy and group marriage.

A very interesting departure was attempted by Dargun in his studies on the origin and development of property and his treatise on mother-right and marriage by capture. His lead was followed by R. Hildebrand in the monograph on law and custom. The principal idea of these inquirers may be stated as follows. We must utilize ethnological as well as historical materials from the whole world, but it is no use doing this indiscriminately. Fruitful comparisons may be instituted mainly in the case of tribes on the same level in their general culture and especially their economic pursuits. Hunting tribes must be primarily compared with other hunters, fishers with fishers, pastoral nations with pastoral nations, agriculturists with agriculturists; nations in transitional stages from one type of culture to the other have to be grouped and examined by themselves. The result would be to establish certain parallel lines in the development of institutions and customs. From this point of view both Dargun and Hildebrand attacked the prevailing theory of primitive communism and insisted on the atomistic individualism of the rudimentary civilization of hunting tribes. Collectivism in the treatment of ownership, common field husbandry, practices of joint holdings, co-aration, common stores, &c., make their appearance according to Dargun in consequence of the drawing together of scattered groups and smaller independent settlements. An evolution of the same kind leading from loose unions around mothers through marriage by capture to patriarchal kindreds was traced in the history of relationship. Grosse (Die Formen der Familie und der Wirtschaft, 1896) followed in a similar strain. Another line of criticism was opened up from the side of exact sociological study. Its best exponent is Steinmetz, who represents with Wilken the Dutch group of investigators of social phenomena. He takes up a standpoint which severs him entirely from the linguistic and historic school. In a discourse on the Meaning of Sociology (p. 10) he expresses himself in the following words: “One who judges of the social state of the Hindus by the book of Manu takes the ideal notions of one portion of the people for the actual conditions of all its parts.” In regard to jurisprudence he distinguishes carefully between art and science. “Jurisprudence in the wider sense is an art, the art of framing rules for social intercourse in so far as these rules can be put into execution by the state and its organs, as well as the art of interpreting and applying these rules. In another sense it is pure science, the investigation of all consciously formulated and actually practised rules, and of their conditions and foundations, in fact of the entire social life of existing and bygone nations, without a knowledge and understanding of which a knowledge and understanding of law as its outcome is, of course, impossible.” In this sense jurisprudence is a part of ethnology and of the comparative history of culture. But in order to grapple with such a tremendous task comparative jurisprudence has not only to call to help the study of scattered ethnological facts. This is not sufficient to widen the frame of observation and to realize the relative character of the principles with which practical lawyers operate, without ever putting in question their general acceptance or logical derivations. Ethnological studies themselves have to look for guidance to psychology, especially to the psychology of emotional life and of character. Although these branches of psychological science have been much less investigated than the study of intellectual processes, they still afford material help to the ethnologist and the comparative jurist; and Steinmetz himself made a remarkable attempt to utilize a psychological analysis of the feelings of revenge in his Origins of Punishment.

6. The necessity of employing more stringent standards of criticisms and more exact methods is now recognized, and it is characteristic that the foremost contemporary representative of comparative jurisprudence, Joseph Kohler of Berlin, principal editor of the Zeitschrift für vgl. Rechtswissenschaft, often gives expression to this view. Beginning with studies of procedure and private law in the provinces of Germany where the French law of the Code Napoléon was still applied, he has thrown his whole energy into monographic surveys and investigations in all the departments of historical and ethnological jurisprudence. The code of Khammurabi and the Babylonian contracts, the ancient Hindu codes and juridical commentaries on them, the legal customs of the different tribes and provinces of India, the collection and sifting of the legal customs of aborigines in the German colonies in Africa, the materials supplied by investigators of Australian and American tribes, the history of legal customs of the Mahommedans, and numberless other points of ethnological research, have been treated by him in articles in his Zeitschrift and in other publications. Comprehensive attempts have also been made by him at a synthetic treatment of certain sides of the law—like the law of debt in his Shakespeare vor dem Forum der Jurisprudenz (1883) or his Primitive History of Marriage. Undoubtedly we have not to deal in this case with mere accumulation of material or with remarks on casual analogies. And yet the importance of these works consists mainly in their extensive range of observation. The critical side is still on the second plane, although not conspicuously absent as in the case of Post and some of his followers. We may sympathize cordially with Kohler’s exhortation to work for a universal history of law without yet perceiving clearly what the stages of this universal history are going to be. We may acknowledge the enormous importance of Morgan’s and Bachofen’s discoveries without feeling bound to recognize that all tribes and nations of the earth have gone substantially through the same forms of development in respect of marriage custom, and without admitting that the evidence for a universal spread of group-marriage has been produced. Altogether the reproach seems not entirely unfounded that investigations of this kind are carried on too much under the sway of a preconceived notion that some highly peculiar arrangement entirely different from what we are practising nowadays—say sexual promiscuity or communism in the treatment of property—must be made out as a universal clue to earlier stages of development. Kohler’s occasional remarks on matters of method (e.g. Zeitschift für vgl. Rechtswissenschaft, xii. 193 seq.) seem hardly adequate to dispel this impression. But in his own work and in that of some of his compeers and followers, J. E. Hitzig, Hellwig, Max Huber, R. Dareste, more exact forms and means of inquiry are gradually put into practice, and the results testify to a distinct heightening of the scientific standard in this group of studies on comparative jurisprudence. Especially conspicuous in this respect are three tendencies: (a) the growing disinclination to accept superficial analysis between phenomena belonging to widely different spheres of culture as necessarily produced by identical causes (e.g. Darinsky’s review of Kovalevsky’s assumptions as to group marriage among the Caucasian tribes, Z. für vgl. Rw., xiv. 151 seq.); (b) the selection of definite historical or ethnological territories for monographic inquiries, in the course of which arrangements observed elsewhere are treated as suggestive material for supplying gaps and starting possible explanations: Kohler’s own contributions have been mainly of this kind; (c) the treatment of selected subjects by an intensive legal analysis, bringing out the principles underlying one or the other rule, its possible differentiation, the means of its application in practice, &c.: Hellwig’s monograph on the right of sanctuary in savage communities (Das Asylrecht der Naturvölker) may be named in illustration of this analytical tendency. Altogether, there can be no doubt that the stage has been reached by comparative jurisprudence when, after a hasty, one might almost say a voracious consumption of materials, investigators begin to strive towards careful sifting of evidence and a conscious examination of methods and critical rules which have to be followed in order 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 stages of development in this respect. The fact that the common stock of Aryan languages and of Aryan legal customs points to a patriarchal organization of the family may be regarded as established, and it is certainly an important fact drawn from a very ancient stage of human history, although there are indications that still more primitive formations may be discovered.

Inferences in the direction of common origin become more doubtful when we argue, not that certain facts proceed from a common stock of notions embodied in the early culture of a race before it was broken up into several branches, but that they have to be accounted for as instances of a similar treatment of legal problems by different peoples of the same ethnic family. The only thing that can be said in such a case is that, methodically, the customs of kindred nations have the first claim to comparison. It is evident that in dealing with blood feud, composition for homicide, and the like, among the Germans or Slavs, the evidence of other Aryan tribes has to be primarily studied. But it is by no means useless for the investigator of these problems to inform himself about the aspect of such customs in the life of nations of other descent, and especially of savage tribes. The motives underlying legal rules in this respect are to a large extent suggested by feelings and considerations which are not in any way peculiarly Aryan, and may be fully illustrated from other sources, as has been done e.g. in Steinmetz’s Origins of Punishment.

(d) This leads to the consideration of what maybe called disconnected analogies. They are instructive in so far as they go back, not to any continuous development, but to the fundamental, psychological and logical unity of human nature. In similar circumstances human beings are likely to solve the same problems in the same way. Take a rather late and special case. In the Anglo-Saxon laws of Ine, a king who lived in the 7th century, it is enacted that no landowner should be allowed to claim personal labour service from his tenants unless he provides them not merely with land, but with their homesteads. Now an exactly similar rule is found in the statement of rural by-laws to be enforced on great domains in Africa, which had been taken over by the imperial fiscus—the Lex Manciana (cf. Schulten, Lex manciana). There is absolutely no reason for assuming a direct transference of the rule from one place to the other: it reflects considerations of natural equity which in both cases were directed against similar encroachments of powerful landowners on a dependent peasant population. In both instances government interfered to draw the line between the payment of rent and the performance of labour, and fastened on the same feature to fix the limit, namely, on the difference between peasants living in their own homes and those who had been settled by the landowner on his farms. Of such analogies, the study of savage life presents a great number, e.g. the widely spread practices of purification by ordeal (H. C. Lea, Superstition and Force).

(e) Organizing thought always seeks to substitute order for chaotic variety. Observations as to disconnected analogies lead to attempts to systematize them from some comprehensive point of view. These attempts may take the shape of a theory of consecutive stages of development. Similar facts appear over and over again in ethnological and antiquarian evidence, because all peoples and tribes, no matter what their race and geographical position, go through the same series of social arrangements. This is the fundamental idea which directed the researches of Maine, McLennan, Morgan, Post, Kohler, although each of these scholars formulated his sequence of stages in a peculiar way. McLennan, for instance, puts the idea referred to in the following words:—

On this basis we might draw up tables of consecutive stages, of which the simplest may be taken from Post:—

This may be supplemented from Friedrichs in regard to initial stages of family organization. He reckons four stages of this kind: promiscuity, loose relations, matriarchal family, patriarchal family, modern, bilateral family (Z. f. vgl. R. wissenschaft). This mode of grouping similar phenomena as a sequence of stages leads to a conception of universal history of a peculiar kind. And as such it has been realized and advocated by Kohler (see e.g. his article in Helmolt’s World’s History, Eng. trans. i.). Prompted by this conception several representatives of comparative jurisprudence have found no difficulty to insert such a peculiar institution as group-marriage into the general and obligatory course of legal evolution. It is to be noticed, however, that Kohler himself has entered a distinct protest against McLennan’s and Post’s view that the more rudimentary a people’s culture is, the more archaic it is, and the earlier it has to be placed in the natural sequence of evolution. This would create difficulties in the case of tribes of exceedingly low culture, like the Ceylon Veddahs, who live in monogamous and patriarchal groups. According to Kohler’s view, neither the mere fact of a low standard of culture, nor the fact that a certain legal custom precedes another in some cases in point of time, settles the natural sequence of development. The process of development must be studied in cases when it is sufficiently clear, gaps in other cases have to be supplied accordingly, and the working together of distinct institutions, especially in cases when there is no ethnic connexion has to be especially noticed. These are counsels of perfection, but Kohler’s own example shows sufficiently that it is not easy to follow them to the letter. One thing is, however, clearly indicated by these and similar criticisms; it is, at the least, premature to sketch anything like a course of universal development for legal history. We have grave doubts whether the time will ever come for laying down any single course of that kind. The attempts made hitherto have generally led to overstating the value of certain parts of the evidence and to squeezing special traits into a supposed general course of evolution.

(f) Another group of thinkers is therefore content to systematize and explain the material from the point of view, not of universal history, but of correspondence to economic stages and types. This is, as we have seen, the leading idea in Dargun’s or Hildebrand’s investigations. It is needless to go into the question of the right or wrong of particular suggestions made by these writers. The place assigned to individualism and collectivism may be adequate or not; how far can be settled only by special inquiries. But the general trend of study initiated in this direction is certainly a promising one, if only one consideration of method is well kept in view. Investigators ought to be very chary of laying down certain combinations as the necessary outcome of certain economic situations. Such combinations or consequences certainly exist; pastoral husbandry, the life of scattered hunting groups, the conditions of agriculturists under feudal rule, certainly contain elements which will recur in divers ethnical surroundings. But we must not forget a feature which is constantly before our eyes in real life: namely, that different minds and characters will draw different and perhaps opposite conclusions in exactly similar outward conditions. This may happen in identical or similar geographical environment; let us only think of ancient Greeks and Turks on the Balkan peninsula, or of ancient Greeks and modern Greeks for that matter. But even the same historical medium leaves, as a rule, scope for treatment of legal problems on divers lines. Take systems of succession. They exercise the most potent influence on the structure and life of society. Undivided succession, whether in the form of primogeniture or in that of junior right, sacrifices equity and natural affection to the economic efficiency of estates. Equal-partition rules, like gavelkind or parage, lead in an exactly opposite direction. And yet both sets of rules coexisted among the agriculturists of feudal England; communities placed in nearly identical historical positions followed one or the other of these rules. The same may be said of types of dwelling and forms of settlement. In other words, it is not enough to start from a given economic condition as if it were bound to regulate with fatalistic precision all the incidents of legal custom and social intercourse. We have to start from actual facts as complex results of many causes, and to try to reduce as much as we can of this material to the action of economic forces in a particular stage or type of development.

(g) The psychological diversities of mankind in dealing with the same or similar problems of food and property, of procreation and marriage, of common defence and relationship, of intercourse and contrast, &c., open another possibility for the grouping of facts and the explanation of their evolution. It may be difficult or impossible to trace the reasons and causes of synthetic combinations in the history of society. That is, we can hardly go beyond noting that certain disconnected features of social life appear together and react on each other. But it is easier and more promising to approach the mass of our material from the analytical side, taking hold of certain principles, or rules, or institutions, and tracing them to their natural consequences either through a direct systematization of recorded facts or, when these fail, through logical inferences. Some of the most brilliant and useful work in the historical study of law has been effected on these lines. Mommsen’s theory of Roman magistracy, Jhering’s theory of the struggle for right, Kohler’s view of the evolution of contract, &c., have been evolved by such a process of legal analysis; and, even when such generalizations have to be curtailed or complicated later on, they serve their turn as a powerful means of organizing evidence and suggesting reasonable explanations. The attribute of “reasonableness” has to be reckoned with largely in such cases. Analytical explanations are attractive to students because they substitute logical clearness for irrational accumulation of traits and facts. They do so to a large extent through appeals to the logic and to the reason common to us and to the people we are studying. This deductive element has to be closely watched and tested from the side of a concrete study of the evidence, but it seems destined to play a very prominent part in the comparative history of law, because legal analysis and construction have at all times striven to embody logic and equity in the domain of actual interests and forces. And, as we have seen in our survey of the literature of the subject, recent comparative studies tend to make the share of juridical analysis in given relative surroundings larger and larger. What is so difficult of attainment to single workers—a harmonious appreciation of the combined influences of common origin, reception of foreign custom, recurring psychological combinations, the driving forces of economic culture and of the dialectical process of legal thought, will be achieved, it may be hoped, by the enthusiastic and brotherly exertions of all the workers in the field.