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THE SCIENCE OF COMPARATIVE JURISPRUDENCE.
BY WILLIAM M. IVINS.
N 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 contirmatory 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. Tyior, 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 pre