r'l DIVERSITY M CAL.rOK^iA 1X)S AMGBLBS ^ KTtV EVOLUTION OF LAW: SELECT READINGS ON THE ORIGIN AND DE\nELOPMENT OF tEGAL INSTITUTIONS Volume II PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS COMPILED BY ALBERT KOCOUREK PROFESSOR OF JURISPRUDENCE IN NORTHWESTERN UNIVERSITY AXD JOHN H. WIGMORE PROFESSOR OF LAW IN NORTHWESTERN UNIVERSITY BOSTON LITTLE, BROWN, AND COMPANY 1915 Copyright, 1915, By Little, Beown, and Company. All rights reserved. Published, June, 1915. Set up and electrotyped by J. S. Gushing Co., Norwood, Mass. , U.S.A. Pressworkby S. J. Parkhill & Co., Boston, Mass., U.S.A. 1G7 PREFACE The relation of the present volume to the preceding one and the volume which is to follow is shown in the Preface to Vol- ume I. The first two volumes should be used together. The selection of materials is such that they are intended to com- plement each other. For the student, the best results will be gotten by attempting first to master the raw materials of the first volume, in analogy to the case-method ; that is to say, by making an effort to reconstruct for himself, from topic to topic, the state of development of the legal institutions among primi- tive and ancient peoples. The easier and less profitable way will be to commence with the second volume, referring for illustrative materials to the first, from subject to subject. Nothing further is here tendered as suggestive of a method of attack. Something should be left to the imagination and the industry of the reader or teacher. In view of the statement as to the purpose of this compila- tion already made in the Preface to Volume I, it perhaps need not be declared that these volumes are not intended for the specialist in historical jurisprudence. But it needs again to be emphasized that a study of the laws, customs, and usages of inferior peoples does not exhaust its mission simply in tracing out the connections between the past and the present. The greatest productive value of an inquiry into the juridical life of remote ages and of arrested developments lies in pro- viding an indispensable standard by which the processes of human reason, so far as they enter the sphere of legal evolu- tion, are guided and corrected. Such an inquiry should result in a clearer estimate of the present, and should provide to a degree a calculus to measure the quality of the irresistible pressure of the future by which all juridical institutions are constantly and progressively modified. Any work on the evolution of law which makes any profes- sions of furnishing a survey of legal institutions necessarily must render account of the ancient substitute for criminal law, of the five main divisions of private law — family, succession, PREFACE persons, property, and obligations — of commerce in the field of special law, and lastly, procedure. The legal categories of the ancient world were exhausted by sins, rituals, and family. We have sought to unite a developed classification of legal ideas with the legal life of the first stages of legal development without, however, seeking to indicate the relative order of evo- lution of legal ideas. Within the more or less prescribed limits of a manageable volume, an undertaking so pretentious as to embrace the whole scale of legal ideas must, in compensation for its range, omit to sound the overtones. It is clear that a book which aims to be a survey of legal institutions must, to accomplish its mission, shun the choice of detailed treatment. In other words, length and breadth are only rarely found in combination, and of these alternatives, we have put the em- phasis on the one suitable for our purpose. It was not possible to restrict these readings, as had been planned in the beginning, to materials already available in English, and in order to fill in what seemed to us to be impor- tant gaps in an organic outline of the law, we have inserted a number of original translations which now appear for the first time in English. For valuable suggestions in the volumes now published, the editors acknowledge their indebtedness to Edward Lindsey, Esq., of the Pennsylvania bar, who has been one of the first in this country, among professional lawyers at least, to urge the large importance of the studies here represented. A. K. J. H. W. Northwestern University, Chicago, November, 1914. TABLE OF CONTENTS INTRODUCTION PAGE Section 1. Evolution of Law 3 By Josef Kohler. Section 2. Ethnological Jurisprudence 10 By Albert H. Post. Section 3. The Origin of Legal Institutions .... 36 1. The Imitation Theory 36 By Gabriel Tarde. 2. Criticism of the Imitation Theory ... 55 By Paul Frederic Girard. Section 4. Universal Comparative Law 61 By Georgio Del Vecchio. PART I LAW AND THE STATE CHAPTER I Forms of Social Organization 73 By J. W. Powell. CHAPTER II Evolution of the State 88 By Josef Kohler. CHAPTER III Omnipotence of the Ancient State 92 by fustel de coulanges. CHAPTER IV Chieftainry and Kingship 96 Section 1. Cultural Impoi-tauce of Chieftainry .... 96 By Josef Kohler. vii Vlll TABLE OF CONTENTS PAGE ,. Section 2. Authority of the King 99 By Fdstel de Coclanges. CHAPTER V Religion and Law 104 Section 1. Religious Origin of Ancient Law 104: By FUSTEL DE CODLANGES. « Section 2. Religious Element in Hindu Law 110 By Henry S. Maine. Section 3. Taboo as a Primitive Substitute for Law . . . 120 By Josef Kohler. CHAPTER VI Evolution op Criminal Law 122 Section 1. Primitive Criminal Law • 122 By Richard R. Cherry. Section 2. Development of Justice o . 128 By L. T. Hobhouse. Section 3. The Origin of Punishment 151 By Ellsworth Faris. CHAPTER VII The Forms of Law 162 By Henry S. Maine. CHAPTER VIII Methods of the Law's Growth 173 By Henry S. Maine. ■---* PART II PERSONS CHAPTER IX Kinship 181 Section 1. The Tribe 181 Section 2. The Clan 187 By J. W. Powell. TABLE OF CONTENTS IX CHAPTER X PAGE The Patriarchal Theory 196 By George E. Howard. CHAPTER XI TOTEMISM AND ExOGAMY 215 Section 1. Exogamy as a Survival of Group Marriage . . . 215 By Josef Kohler. Section 2. Origin of Exogamy and Totemism .... 216 By Andrew Lang. CHAPTER XII Women in Primitive Society 237 By L. T. HoBHonsE. CHAPTER XIII Marriage 276 Section 1. Forms of IMarriage 276 By JosEF Kohler. • ection 2. Tribal Marriage Law 277 By J. W. Powell. Section 3. Religious Basis of the Family 283 By FusTEL de Coulanges. .. Section 4. Marriage in Greece and Rome 285 By FuexEL de Coolanges. CHAPTER XIV Patria Potestas 291 By Henry S. Maine. CHAPTER XV Women and Marriage under Civilization 301 By L. T. HoBHOusE. CHAPTER XVI Children and the Family ........ 336 By Josef Kohler. X TABLE OF CONTENTS CHAPTER XVII PAGE Adoptiox and Artificial Relationship 341 Section 1. Survey of Artificial Relationships 341 By Josef Kohler. ^ Section 2. Religious Basis of Adoption 344 By FUSTEL DE COULANGES. CHAPTER XVIII Slavery 347 Section 1. Historical Importance of Slavery 347 By Josef Kohler. Section 2. Theories of Slavery 350 By Henry S. Maine. CHAPTER XIX Capitis Deminutio 353 By Rudolph Soioi. CHAPTER XX ExiSTiMATioKis Minutio 356 By Rudolph Sohm. PART III THINGS CHAPTER XXI The Law of Property Section 1. Religious Basis of Property By FuSTEL DE Ck)ULANGES. Section 2: Development of the Idea of Property .... By L. T. HoBirt3usE. Section 3. Early History of Property and the Village Community By Henry S. Maine. Section 4. The Village Community as a Primitive Institution By George Laurence Gomme. 361 361 380 39- CHAPTER XXII Origin of Commercial Institutions By Levin Goldschmidt. 407 TABLE OF CONTEXTS XI CHAPTER XXIII PAGE Primitive Commebcial Law 420 By Cakl Koehxe. CHAPTER XXIV Barter and Transfer 435 Section 1. Barter 435 By Josef Kohler. Section 2. Primitive Transfer of Goods 439 By Felix So.mlo. CHAPTER XXV Pledge 452 Section 1. Forms of Pledge Rights 452 By Josef Kohler. Sectioti 2. The Pledge Idea 456 By John H. "Wigmore. CHAPTER XXVI Suretyship 478 By Josef Kohler. CHAPTER XXVII Evolution of the Law of Contract 481 Section 1. The Fides Commandment 481 By B. W. Leist. Section 2. Early History of Contract 498 By Hezs'rt S. Maine. Section 3. Sponsio and Primitive Contract 512 By Pol Collinet. CHAPTER XXVIII Sales and Loans at Rome ........ 518 By Rudolph Sohm. CHAPTER XXIX Interest 531 Bj' Josef Kohler. Xll TABLE OF CONTENTS CHAPTER XXX FAOB Succession 536 Section 1. Survey of the Law of Succession 536 By Josef Kohler. Section 2. Religious Basis of Inheritance 542 By FcrsTEL de Coulanges. Section 3. Early History of Testamentary Succession . . . 553 By Henry S. Maine. PART IV PEOCEDURE CHAPTER XXXI Procedure 575 Section 1. Survey of the Law of Procedure ..... 575 By Josef Kohler. Section 2. Ancient Magistracy 580 By EcSTEL DE Coulanges. Section 3. Primitive Forms of Legal Remedies .... 586 By Henry S. Maine. Section 4. The Ordeal and the Oath 609 By Gustave Glotz. Section 5. Ancient Formalism . 638 By Andreas Heusler. Section 6. Ancient Semitic Procedure 654 By Stanley A. C ook. Section 7. /Ancient itoman Procedur e J 668 By Rddolph Sohm. Section 8, Evolution of Procedure 691 By Gabriel Tarde. % PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS INTRODUCTION Section 1. EVOLUTION OF LAW By Josef Koiiler Section 2. ETHNOLOGICAL JURISPRUDENCE Br Albert H. Post Section 3. THE ORIGIN OF LEGAL INSTITUTIONS ' No. 1. THE IMITATION THEORY By Gabriel Tarde No. 2. CRITICISM OF THE IMITATION THEORY By Paul Frederic Girard Section 4. UNIVERSAL COMPARATIVE LAW By Georgio Del Vecchio EVOLUTION OF LAW Volume II PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS INTRODUCTION Section 1 EVOLUTION OF LAW i Comparati\t: legal history is a science of most recent date. In the period of our juristic studentship, very few persons had any notion that the deepest roots of legal history and legal philosophy were here to be found. If our instructors, not quite twenty years ago, when we ourselves listened as students in the lecture halls, had spoken of the laws of primitive peoples, we would have been as little impressed, as might have been the elegant humanists of the sixteenth century if someone had told them of the language of the Hottentots or the Bushmen. ... In the same way that the study of Germanic law has brilliantly justified its existence through the rich discoveries which, from day to day, it has laid at our feet, so also comparative legal history, by the fulness of its results, the width of its horizon, and a cultivation of the legal historical sense, will generously render compensation for the field of activity al- lowed to it. The traditions of Roman law, and the monuments of the Latin language go back to a time covered by night and mist ; and not even the most acute vision will be suJBBcient to pene- trate this veil, and look upon the facts and forces which lie in the MBv Josef Kohler ; from Griinhut's "Z. f. d. privat- und offentliche Recht,'" Bd. XIV (1887), p. 410 seq.; translated by Albert Kocourek.] 4 INTRODUCTION [§ 1. depths of the past. Everything attempted by way of conjecture proceeds only from specious hypothesis, — especially if the in- vestigator is unable to ^e-li^•e the ideas, feelings, and point of view of past ages, in his effort to reconstruct the small fragments of ancient legal life on the basis of the ideas of the present day, — just as it would be with the ethnologist who might seek to explain the remains of the weapons of the lake dwellers by comparison with the firing arms of modern times. Germanic law leads us back farther into the primitive age than Roman law ; but even the oldest sources of Germanic law, Tacitus, the Lex Salica, and the most ancient records, tell of the old institutions a story which is highly fragmentary and unsatisfactory. Thus, we come to the point reached by the investigator who searches the monuments of the Latin or Germanic stem languages to their origin where he encounters what seems an invincible in- terrogation. What has been the course of development of these perfected systems of language in reaching their position of organic symmetry ? In what way is an explanation to be given of the con- spicuous affinities, on one hand, and the remarkable differentiation, on the other, among languages? Comparative philology has given the answer; it has established the elements of language; it has sought to show how language from the first expression of human needs has become the trustworthy instrument of man's mental faculties, in an uninterrupted evolution, representing the most refined sublimate of ideas, and the most delicate nuances of feeling ; and it explains how, with departures from an original tongue, individual languages have developed according to anal- ogies and following various laws of growth — how, in the construc- tion of languages, the great law of organic nature, unity in diver- sity, has been maintained. Comparative law has the same func- tion in the sphere of law, as the science of comparative philology in the field of language ; it is its mission to explore the path of legal development from its most primitive point of beginning to the stage where it enters the domain of the science of legal history. Such a science, it must be conceded, would have been in vain, if the law were an accidental creation, the sport of chance, in which case the study of peoples would, indeed, disclose laws, but not law ; it would exhibit, even, an interesting profusion of details, a chaos of particulars, without organization, and wanting in regularity of development. Happily, there is no danger of stumbling upon such objections, since in this day there may no longer be any question, that the law is not the chance product of profitable and unprofitable § 1.] EVOLUTION OF LAW 5 hours ; but is the result of an innately reasonable impulse oi humanity, a sociological process pushed forward by necessity through the coexistence of reasonable beings with material and spiritual wants/ and which therefore, like every evolutionary pro- cess which expresses reason, has its own principles and eternal laws. x4nother proposition opens the way tlirough the countless turns of evolution in which the idea of law struggles to unfold — the essential sameness of the factors of human development among the most diverse branches of mankind. If this proposition is valid, then it is certain that in a definite stage of legal development, the legal systems of the most diverse peoples will show secondary dif- ferences, but in the midst of these differences must exhibit a unify- ing principle.- This truth is one of the most brilliant achievements of modern ethnology. The science of ethnology has not only dem- onstrated general similarities, but also the most striking anal- ogies in detail, — analogies of institutions not only of a kind which lie close to human nature, but also such as relate to the most in- frequent, bizarre, and unnatural customs of peoples ^ — analogies which cannot be explained as borrowings, but which are independ- ent phenomena appearing among tribes where no trace of ethnic connection is to be found. This principle applied to the law immeasurably widens our historical horizon; and the thick fog which has surrounded ancient times is illuminated. In the legal systems of extant primitive peoples are found the analogies of those legal conditions under which our most ancient ancestors lived, of which ail recollection has died away and every record has faded .^ And how could it have been otherwise in the law ? Hun- ger and love have been, from the beginning of time, primal im- pulses of the human race. Solicitude for the individual, as well as solicitude for the species, has burrowed under human nature, pro- ducing endlessly inexhaustible conflicts. Hunger and love have everywhere git-en birth to the law ; and their primitive force has generated one legal institution after the other. This new science to-day is revealed to us in immeasurable sig- nificance. In the same wa}^ that philology has undertaken from the most scanty germs of language construction to explore the compounded agglutinative forms of speech to reach the inflectional languages, and, again, to proceed from the lowest to the highest forms of language, so, also, comparative legal science has the mis- 1 See my article in " Z. f . vergleichende Rechtswissenschaft," III, p. 161 seq. '' Cf. my article in "Krit. Viertoljahresschrift," X. F. IV, p. 176 seq. ^ Cf. my article in "Z. f. verg. R.," V, p. 400 scq. * Cf. my article in "Krit. Vierteljahresschrift," N. F. IV, p. 175 seq. 6 INTRODUCTION [§ 1. sion of showing the development of the law from the earliest germi- nation of legal consciousness to the time when it has grown into a mighty tree, and thrown its shade over the world. ^ When we contemplate this development, we must shudder to think of the enormous effort which mankind must make to bring forth a legal institution.^ To achieve the institution of marriage in the modern sense, or the parental relationship, or the law of contract, and to attain a State which looks after all interests, re- quired an enormous outlay of human energies involving not alone individuals but peoples ; thousands of young lives were blighted, thousands of hearts were broken, and streams of blood flowed to enable a fruitful new idea to come into existence ; just as it re- quired the powerful expenditure of all the forces of nature to raise up our organic world out of its original imperfection. Comparative legal investigation deals with the evolutionary side of the law ; by no means, however, with that desolate and sterile kind of evolution which derives each development from an accidental and external coincidence of particular facts ; but, on the contrary, with the spiritual point of view which assumes that the world-process involves an inherently reasonable course of devel- opment, an evolutionary struggle which employs mechanical factors only for the attainment of its ends. Evolution must con- tend against a profusion of opposing elements ; it must make way against human errors, against obstinacies, rigidity, tenacity, and defiance ; but it succeeds in pushing forward, and where the straight road of progress is blocked, it finds a devious route for the accomplishment of its purposes. When obstinacy and reserve stand in the way, it decomposes them by a withering process of centuries. It sinks its roots into hundreds of fissures and crevices, and imperceptibly one phase of life is extinguished to give place to another. The movement of evolution may appear imperfect in that it does not imitate the speed of the lightning, but the power of resistance only with which evolution contends, is imperfect, when we bear in mind the end, and only the end, of this struggle. The way to the end is justified even though it proceeds through eons of time. Philosophically considered, time is only an inferior ele- ^ Cf. my essay, "Das Reeht als Culturerseheinung," p. 5. 2 [As these lines are being translated the whole world is feeling the shock of the bloody clash of European armies, in which struggle the learned author's country is one of the leading combatants. Nothing, it seems to us, can more vividly illustrate the truth of the last sentence of the text, than this destructive conflict. Mankind has not, up to this moment, yet paid the price which must be rendered before there can be granted to it the institution of international peace.] § 1.] EVOLUTION OF LAW 7 ment in the phenomena of things. Here, as elsewhere, in nature, perfection is not measured by human standards; for man is a temporal and limited being, and is not the measure of things.^ Evolution makes use of men and nations against their will.^ Struck by an inexplicable notion or desire they seek a lost trifle and find a treasure of cultural progression. INIisgiving and timidity lay hold of Hamlet; his hand is restrained by an unaccountable feeling ; the sword remains in its scabbard ; and the revenge of blood is stayed.^ The ambition of a half-barbarous INIacedonian demolished the Persian empire, and a flood of Oriental culture poured out over the Occident. We are now competent to appreciate the unending benedictions of culture. We shall speak no more of the Golden Age of man in a state of nature from which civilization led him to a condition of misery ; on the contrary, we shall hail culture as the lamp which has shown the way to the regions of light from the darkness of night. It is the highest consolation which science can grant for the future, that it is allotted to humanity to achieve a better end, and a more exalted form of existence. Therefore, let us interlock anew with the wheels of cultural and legal evolution ! The more powerfully our forces are applied, the quicker will mankind be carried to its higher destiny, and the sooner will one mission after another of humanity be fulfilled ! However great the sorrows and pains may be, with which mankind is afflicted, they have a reason- able meaning, and an evolutionary purpose;^ for every stage of historical progress involves suffering.^ In order that a fort may be carried, thousands must fall, and the flag of victory is planted only over the bodies of the dead. Sarastro's reign first triumphs after Pamina is plundered. Wrongs and sufltering are the soil upon which the flower of the law blossoms.^ 1 Everything which has been advanced against teleology, touches only an anthi-'opomorphic or individualist teleology which always applies a human standard, or which denies that mankind is organic in construction, for which purpose individuals alone are considered as factors in evolution. '^ Cf. mv article " Rechtsgeschichte und Weltentwickelung," in "Z. f. V. R.'"' V, p. 328 se^. 3 The objections raised against my Hamlet interpretation rest on the most singular esthetic misunderstanding. Immortal Shakespeare, why did you not provide your Hamlet with its fabula docet ! ^ Cf. mv "Aus dem Lande der Kunst," p. 18 seq. 6 George Eliot, "Mill on the Floss" (Germ, trans, by Kolb, II, p. 14.5). « Even the application of law brings with it unmerited suffering. When the head of the father of a family falls under the ax, the whole family is plunged into misery. "We can think of no retribution which does not exceed its purpose and inflict undeserved pain." — George Eliot, op. cit.^,^ p. 94. Cf. also, my "Shakespeare vor dem Forum der Jurisprudenz, p. 95 seq., and the "Nachwort," p. 1 seq. 8 INTRODUCTION [§ 1. And now, what is the ultimate destiny of mankind with its struggle and effort? The question is one of philosophy, but yet the law may share it, since the law is one of the chief factors of human progress. The end of human development is divine unity through knowledge (science), perception (art), and metaphysical feeling (religion). The cultivation of all these highest objects is possible only under the greatest refinement of social condition, — under conditions which the law alone can bring about. Legal science, in that it operates to further these conditions, levels the road upon which science, art, and religion celebrate their triumphal march. Jurisprudence, however, does not accomplish its mission by this practical activity ; like every science and art, it has also its own independent purposes.^ And like all knowledge, knowledge of the law is one of the most important objects of the human mind. We may regard it as one of the highest emanations of a god-like force which sways mankind, and leads it, even against its own will, to its destiny. And what would be the life of the nations without science ? And what of its joys, its fears and hopes, its tenderness with its sighs and longings, its family life with its charms and cares, its commer- cial activities with all their changing fortunes and their hurry and bustle, — if all this were to be swallowed up in the maw of time without ultimate result? And what record would be left after thousands of years of our struggle for existence, of our efforts and striving, if it were not for the monuments of science and art? Dimmi, o luna : a che vale Al pastor la sua vita ? ^ A point needs to be emphasized against the aberrations into which the philosophy of nature and history once fell ; it is not for us to master facts, or to substitute fancies for science. A phantas- magoria is not science, and alchemy is only a divergence from the proper line of effort. Inexhaustible and unfathomable are the ways of nature and history. It would be a frivolous endeavor to attempt to interpret them with our ideas — ideas which span but a small part of what has come to pass. Against the great abun- dance of enduring nature the narrowness of our limited, particular existence must make head. Therefore we must undertake, dili- ^ Cf. my article, " RechtsgescMchte imd Culturgeschiclite," in 'Griin- hut's Z.," XII, p. 590 seq. '^ Leopardi, "Canto notturo di un pastore errante dell' Asia" (ed. Capellina, Milan, 1883), p. 91. [Canto Notturho, Poem xxiii, "The Poems of Leopardi," edited by Francis Brooks, Manchester, 1909.] § 1.] EVOLUTION OF LAW 9 gently, an investigation of details. No particular is so unimpor- tant, no tribe of people is so lacking in interest even though it be one of the most degraded anthropomorphous types, and no his- torical tradition of ancient times is so scanty, as not to be worthy of attention.^ What is a philosophy- of history without facts? What is an interpretation of legal evolution without the rich ob- servation of this development itself ? If one speaks constantly of the barbarism of earlier legal systems, it is not to commend as worthy of imitation, but as an object of the movement of culture. The age of barbarism must be profoundly studied ; for only his- torical knowledge gives us freedom and widens our horizon, in order that we may understand the laws of evolution. Of course, no botanist would want to fill the streams with algte, but yet, he finds in them the evidence of the eternal laws governing the vege- table kingdom. After the materials are collected, the task will be to abstract from them principles, to discover the operative, constructive impulse manifested in the positive movement of progress,- and to discover what was the elastic force, and what the machinery which lifted humanity from one level of development to another, until culture, and even superculture, replaced the rudest forms of existence. This procedure will be no dift'erent than the procedure of science in general. It is the method of the philologist who in- vestigates the laws of the mutation of consonants, or traces back verbal abstractions to sensible ideas. It is the method of the ge- ologist who explains the evolutionary stages of the earth, by the stratification of the rocks, and by the discovery of petrified remains of life. Finally, it is the method, in general, of the investigator, who discloses in the flow of phenomena the eternal laws which govern the universe. 1 ''To the mind which looks out from a higher point of view, nothing is unimportant, since everything may be regarded as having an endless chain of relations." — George Eliot, op. cit. (Kolb's trans.), II, p. 145. 2 Against the remarks of Dargun (in " Rechtsgeleerd Magazijn," 1886, p. 391 seq.) it may be emphasized that the evolution of law does not pro- ceed according to mathematical rule any more than the development of culture in general ; since individual circumstances are endless in their differences, and in that now one factor, and then another, is predominant. This, at the same time, is one of the allurements presented by the maui- f9ldness of legal history. Even tribes governed by the principle of Father- right, frequently retain the rule of succession through nephews ; and the institution of wife-purchase may persist for centuries alongside of INIother- right. When, as among many tribes, the husl^and must defend his pos- session of his wife against the tribe, this may be explained as a conspicu- ous survival of a condition where the wife belonged to the tribe. What at one time was a right frequently appears with the greatest stubbornness in the form of a wrong. 10 INTRODUCTION l§ 2. Section 2 ETHNOLOGICAL JURISPRUDExNCE ^ Ethnological jurisprudence, the most recent branch of the science of law, so richly elaborated by every method of research, has still to battle for its existence. Wide circles in the world of juridical learning utterly ignore it, or assume a hostile and at best sceptical attitude towards it. Neither the history of law nor the philosophy of jurisprudence has accorded it scientific recognition, and even the tenability of the principles upon which it is based has been characterised as highly questionable. It is universally true that every new departure in science at first meets with opposition, and that it cannot aspire to recognition until it is in a position to present results that are incontrovertible. Only by presenting such results can it acquire recognised standing in the roll of the sciences, and only by the elaboration of these results can it repel definitively the attacks directed against it. But this process may be expedited by giving in the clearest and most explicit terms possible a sketch of its underlying principles, and so in the present case, while ethnological jurisprudence is still in the initial stages of its development, it will not be amiss, in the interests of our study, to attempt a substantiation of its scientific pretensions. We shall, by so doing, at least throw obstacles in the way of superficial criticism from the traditional standpoint. Ethnological jurisprudence stands in marked contrast with the tendencies that at present dominate the science of law. Its method of procedure is fundamentally inductive, and has for its starting-point the customs and jural concepts of all the nations of the earth. Its method furthermore is specifically comparative- ethnological ; that is to say, it is on the one hand socio-psycholog- ical and on the other hand comparative in the sense that it pro- ceeds by comparison even where the historical connexion between the facts of the jural life is lacking. It is thus opposed to — 1. Every philosophy of jurisprudence which is essentially de- ductive in its methods. 2. Every system of jurisprudence founded upon the law of a single nation or a single group of nations. 1 [By Albert Hermann Post. Translated from the German by Thomas J. McCormack. Reprinted, by permission, from "The Open Court," Vol. XI, Nos. 11, 12 (November, December, 1897).] § 2.] ETHNOLOGICAL JURISPRLT)ENCE 11 3. Every system of jurisprudence which is individuo-psycho- logical in its origin. 4. All investigations of historical jurisprudence which on prin- ciple do not quit the ground of historical connexion in the treat- ment of the facts of jural life. These innovations have given to ethnological jurisprudence its peculiar impress, and it is this peculiarity' that demands scientific vindication. The first point of view that presents itself for the examination of the jural order is unquestionably the individuo-psychological. For the domain of jural life comprehends the action of the forces that emanate from individuals, and the law finds its most immedi- ate expression in the jural sense of the individual. It is daily born anew in the depths of the human soul. Here it appears in the form of passion and desire, so soon as a misdeed is committed, and urges to vengeance and expiation. The written law of statute- books and the courts, however, is but the mediate expression of the jural life. The first point of view presenting itself is therefore the follow- ing : to regard all jural order as the product of the differences and coincidences of the jural sense of human individuals, and to en- deavor to explain the same from the natiu-e of man, that is, from the nature of the individual. This idea still rules supreme in modern jurisprudence. We meet on all sides with arguments explanatory of state and law, which are derived from the nature of the human individual. And seeing that the individuo-psychological method of investigation derives its materials directly from the living source of life, while the socio-psychological starts from the jural phenomena of the life of all nations, deriving thence its inductions as to the causes which underlie the same, certainly, if it were possible to explain jural life adequately from the nature of the human individual, the individuo- psychological method would have the preference. But this latter method does not lead far towards the under- standing of jural life. The sequence of causes soon vanishes in so inaccessible a sphere as the personality of the individual, and true scientific inquiry is displaced by ingenuity and sophistry. Viewed from the individuo-psychological standpoint, the facts of jural life are partly matter of our subjective and partly matter of our objective experience. Matter of subjective experience is merely our own individual jural sense, that is our individual consciousness as bearing upon 12 INTRODUCTION [§ 2. right and wrong. This indivickial jural sense is made up of a sum- total of psychical activities, of which we become conscious when from inward or outward excitation we are confronted with the ques- tion as to whether something is right or wrong. These psychical activities are partly feelings and desires, and partly judgments, the former tending towards action and the latter tending towards ex- pression by word or sign. Jural feelings are principally feelings of indignation as when an injustice is experienced by an individual, a feeling of fear as when the individual is affected by an inclination to do wrong, a feeling of penitence as when the indi^'idual has com- mitted a wrong. With the feeling of indignation is joined a desire for vengeance, with the feeling of penitence a desire of atonement, the former tending towards an act of vengeance and the latter towards an act of expiation. The jural judgments of individuals are not complete judgments ; they are based upon an undefined sense of right and wrong. In the consciousness of the individual there exists no standard of right and wrong under which every single circumstance giving rise to the formation of a jural judgment can be subsumed. A simple instinct impels the individual to de- clare an action right or wTong. It thus becomes evident that the individuo-psychological analy- sis of the individual jural sense, in so far as it rests upon subjective experience, can afford only meagre results. All psychical phe- nomena of the jural sense are, so far as regards our subjective experience, ready-made products. The psychological develop- ment of jural emotions, desires, and judgments, is not accessible to our inner experience. The psychological processes whereby we become conscious of jural emotions, desires, and judgments, lie without the reach of consciousness. Further, subjective observation of the psychical processes from which the jural sense springs, bears the same character as subjec- tive observation of psychical processes generally. Systematic self-observation is impossible, inasmuch as the observing subject and the observed object are one and the same, and the very act of observing thus modifies the object observed.^ It is likewise impossible to evoke, arbitrarily or artificially, a jural desire or an instinctive jural judgment ; they always appear instantaneously and unbidden in consciousness. As material for observation, accordingly, there remains only the recollection of such occurrences in the mind of the individual. 1 Comte, "Positive Philosophj^" abridged by Rig; German translation by Kirchmann, 1883, I., p. 13 £f. Wundt, " Logik," 1883, II., p. 482. § 2.] ETHNOLOGICAL JURISPRLTDENCE 13 Still another drawback to the employment of subjective obser- vation for scientific inquiry is the fact, that it is almost utterly impossible to distinguish in general between jural feelings, desires, and judgments, and moral feelings, desires, and judgments. Scientific inquiry attains more favorable results when it adopts as the subject of investigation the expressions of the individual jural conscience in the external world of sense — that is, the phe- nomena of the individual jural sense as appearing in acts on the one hand and in words and signs on the other. Here self-observation discovers facts which are represented as events in the outward world of sense, and which are consequently subject to external obser- vation. True, the observation of the outward expressions of the individual jural conscience in acts, words, and signs affords scarcely more material for the psychological analysis of the individual jural sense than the direct inward observation of the same. The ma- terial for observation increases, however, if the observer, not con- fining himself to the expressions of his own jural sense, compares with these the expressions of the jural sense of other people, or even compares the expressions of the jural sense of other people with each other. From this method dissimilarities in the phenomena of the jural consciousness appear at once, and these are in a high degree adapted to throw light upon its nature. In the first place it is possible to distinguish differences in the jural sense of individuals according to their ages. It is possible to follow the jural sense of children in its development. We are also able to fix degrees of jural sense in youth and manhood, perhaps too in old age. It will be possible, furthermore, to point out variations of jural sense between the male and female sexes. Then further, there are to be noted marked irregularities of jural sense resulting from derangement ; which derangement may rest on biological as well as sociological causes. Mental diseases, affecting the whole consciousness of the individual, affect the jural sense also. Besides these, there are a great number of persons whose jural sense, though not disturbed by any psychi- cal disarrangement, is far below the normal state ; namely, crim- inals. Such persons, endowed with a jural sense of a socio-patho- logical kind, furnish the material for a separate branch of psychol- ogy; viz., criminal psychology. IVIarked irregularities in the individual jural sense may be further distinguished according to the social circle in which the individual moves. Even in a single nation these irregularities are quite considerable ; according to caste, culture, occupation, politics, religion, and the like. Yet 14 INTRODUCTION [§ 2. the most considerable deviations are to be found between the jural consciences of difl'erent peoples, and they are more considerable according as the difference in civilisation is greater, or as the devel- opment of the same has been more unique. In all these ways it would be possible to observe the expressions of the individual jural sense and by a process of individuo-psy- chological comparison to arrive at scientific results. It is evident, though, that it would be difficult to collect the material for obser- vation, and that the observations of individuals themselves to this end would be subject to innumerable sources of error. These observations could not acquire scientific value unless made upon the most extensive plan, and with persons of different ages, different sex, different intellectual ability, different social standing, and different nationality ; and unless the material accu- mulated were so considerable that all the sources of error in indi- vidual observation could be eliminated. To limit the observations to a narrow field, would necessarily yield incorrect results ; for it is now beyond question that the jural sense of individuals is sub- ject to the most varied differentiations. The most distorted presentation of all, however, is produced when the inquirer confines himself mainly to his own individual jural sense, and persuades himself that this should determine the conduct of humanity. He has here merely systematised his own jural consciousness ; mani- festly a doleful scientific result. How is it possible to observe the manifestations of the individual jural sense, which appear only instinctively and occasionally, exhaustively enough to obtain really valuable scientific material for a causal analysis of the jural order? It is unquestionably hopeless. And even were it possible to proceed thus, we should be far from exhausting in this way the data of jural life. Jural life, as a social province, is by no means made up of immediate expressions of the individual jural sense only ; there are also mediate and in- direct expressions of the same in it. The positive laws of nations with their statutes and provisions, have, it is true, their first origin in the expressions of the jural sense of individuals. But after these have become positive laws they are no longer the immediate ex- pressions of the individual jural sense, but the objective products of the jural sense of whole spheres of social development, of count- less individuals with variously formed jural consciences — indi- viduals of existing generations as well as individuals that have long passed away. § 2.] ETHNOLOGICAL JURISPRUDENCE 15 It would be a manifestly precarious attempt to seek the expla- nation of these phenomena in the nature of the human individual itself. Unlimited scope would be given to caprice and imagina- tion. And yet, in the face of all, this method of studying the Science of Jurisprudence is still greatly in vogue, and meets with unquali- fied approval from contemporary students. They endow the human individual with certain instincts, the social instinct and the instinct of self-preservation : or they will have it pursue different ends according to its constitutional bent, happiness, liberty, etc., and upon these phantasms they build their structure as becomes the kindly heart and academic culture of the philosopher. These artistic productions are often charming reading, often teem with clever conceits, and give us a pretty picture of how blissful all would be, were it not so different in the world. If these works did not claim to be more than light and entertaining reading, we might joyfully welcome them. But they pretend to be more ; they as- sert that they are scientific and would actually influence the prac- tical mechanism of the jural order. Herein is their danger. Eth- nological Jurisprudence, in my opinion, must stand aloof from all attempts to define State and Law on the basis of individual psy- chology. And now" to the discussion and proof. It is not only in the province of Jurisprudence that we find at- tempts to explain the phenomena of social life on the basis of individual psychology. This method is common to all the other social sciences. It rests upon a broad and fundamental psycholog- ical principle, which at the present day shows signs of instability and will sooner or later be completely overthrown. All human science takes on a different form, according to whether we assume that the nature of man can be determined from his ego alone, or that the soul and egooi man are not identical but that man is conscious of a portion only of his psychical activity. In the first instance, the psychology of the individual is the irreversible basis of human science ; in the second, we have to look about us for broader foundations. Ethnology, and likewise ethnological jurisprudence, is founded upon the second view. It assumes that, in the individual consciousness, only a small portion of his psy- chical activity is manifest to the individual and that the greater part is lost to his consciousness. It regards individual psychology, therefore, as no proper basis of science. 16 INTRODUCTION [§ 2. That which we call our consciousness is in any case but an in- finitesimally small portion of the totality of psychic life active within us. It hovers like a tenuous and shimmering cloud above an unfathomable ocean. All manner of images rise from the depths of our soul, yet few assume such sharpness of contour as to be recognised. By far the greater portion of our spiritual life remains unknown to us. By far the greatest portion of the spiritual life of which we are conscious, is known to us only as the resultant product of unconscious psychical processes, and not as something in process of production. We remain totally unconscious of those spiritual activities which touch most nearly the vital centre of our being, the activities which create on the one side an ego and on the other a world. At the instant a child first becomes conscious of itself, the ego and the world are already existent : their birth is concomitant with the act of consciousness. The unconscious activities of the soul have shaped them, until, appearing as ready- formed products, they give rise to that radical contrariety by which man becomes conscious of himself and a world. We remain utterly unconscious, too, of those psychical workings which give to the world its sensible character and to the ego its spiritual. Our world, in every phase in which it is accessible to us, is virtually a product of psychical activities acting unconsciously within us. Light, heat, color, sound, taste, smell, pressure, weight, even space and time, do not belong to the world as such: on the contrary thej^ are creations of mental activities, corresponding to the psycho- logical activities of our sensory and central organs and project without a world created within. Rokitansky ^ expresses himself upon this subject as follows : " We see the world that surrounds us by means of light ; but it is now known that light does not exist as such apart from us; on the contrary it is vibrations of ether, which we transpose into light, and recognise as such, by means of mechanisms of specific irritability located beyond the sensory organs proper. Thus we ourselves illuminate space and come to know things therein through their relation to light ; we acquire knowledge not only as to their surface and outlines, but also as to their inner constitution. It is likewise the vibrations of sounding bodies of different magnitude and velocity, taken up and communicated to us by the air, that we convert into sound and tone. And so, too, the things which we perceive through impressions upon the other senses, are, apart from our conception of them, quite different, and undoubtedly consist 1 "Der selbst. Werth des Wissens," 1869, p. 6, et seq. § 2.] ETHNOLOGICAL JURISPRUDENCE 17 of the molecular or molar motions of matter. It must strike every impartial person as strange that we recognise as external objects things of which the conception is really formed within us. How does this come? There is undoubtedly a subjective organic activity present here. " This much is known : that the impelling power in obedience to which we project objects conceived, outside the subject con- ceiving them, must lie in the inward organisation of the mind ; that the conception of things in space is a function of the organs of our cognitive faculty which even in dreams creates in our imagination an external world. " The perceptible world about us is essentially a creation of our personality ; it is by the functioning of inner organs that objects appear as things outside of us, as things of definite quality and form, of definite size and greatness. Further, when we behold in the genesis of things and in their different stages and mutations a succession and a connexion, we say that the succession takes place in time and that the connexion between the changes is a causal one. But when we ask ourselves how we arrive at these conclusions, it turns out that we do so by virtue of subjective forms which must lie in our organisation and by means of which we are in fact enabled to apprehend successions and connexions." Even the world that remains after we remove the mantle of sensible phenomena, the world of ether and matter vibrations, is still not the world proper ; it is the world only as it appears to human cognitive activity. The psychical operations, too, that create our ego are totally hidden from us. And even the greater part of those psychical operations of which we are conscious, are presented to consciousness as finished prod- ucts, the genesis of which took place in unconsciousness. Ra- tiocination alone is effected wholly in consciousness. Feelings and desires come to consciousness as results only, and many judgments are not logical judgments, but incompleted ones, lying, with the principle upon which they were formed, in the province of the un- conscious. If all this be correct, it is evident that our consciousness is in no wise fitted for the thorough comprehension of human nature ; for only an insignificant portion of our spiritual life ever becomes immediately conscious. What we are able to fathom by self- contemplation is soon exhausted. Yet unlimited is the province of knowledge that opens before us, if to the inward observation of 18 INTRODUCTION [§ 2. self we add outward observation by the senses ; in other words, if, from the phenomena of unconscious psychic Hfe as expressed in the outward world of sense, we draw inferences as to the uncon- scious activities at work within us. To this end the whole sensible world presents itself. Our sen- sible world is not the real world-in-itself. It is merely a world- image, made by man, created by human psychical activities. From this, therefore, we shall be able to gather a great part of our unconscious psychical life, and thus come infinitely nearer the essence of our being than would be possible through the introspec- tive observation of our own psychical activities. In this way we arrive, not at the psychology of the past, which attempted to unfold the nature of man from the ego, but at a psy- chology which will endeavor to disclose the same from the world- image created by man. Among the phenomena of our sensible world which admit of inferences as to unconscious psychical activities, the phenomena of social life assume a prominent place. And social life, though made up of the activities of individuals, supposably in possession of free will, is also essentially instinctive, resting upon the more or less unconscious impulses of the individ- ual. Whosoever has had to do with the more intricate problems of ethnology, will entertain no doubt whatever of this fact. Turn where we will in the domain of social life, we shall every- where see fixed social laws at work, everywhere meet with a ten- dency of development, which leading through centuries and cen- turies, makes towards some definite end, and of whose aims the individuals comprehended in the movement have no idea. Con- template the history of the growth of language, .the development of forms of divinity, of art, of legal institutions, even of fashions and utensils ; they come, grow, and go, like things of life. There is but little here that is the product of individual reflexion ; almost everything is of organic growth. The individual follows blind impulses and coercive social conditions ; the individual most fre- quently intends the very opposite of what he produces by his work, and all that he does accomplish, unless fitting in with the course of organic development, will soon come to naught. That the individual in social life acts for the most part instinc- tively, we may ascertain by self-observation and by the observa- tion of other individuals. A man, in speaking to another, employs § 2.] ETHNOLOGICAL JURISPRLT)ENCE 19 the words he needs quite instinctively; they come to him, as a rule, without further reflexion. He need not know anything of the grammar of the language he speaks, and yet many employ the language with the greatest ease. A man who is confronted with the question whether he is acting advantageously or not, whether he is committing an act of justice or injustice, generally decides from pure instinct, occasionally from feeling, but seldom through clear reasoning, and then always liable to the danger of mistake. A poem, a melody, a picture, a statue, arises before the mind's eye of an artist : something comes to him. Not until something comes to him, can he elaborate it further by thought. Creations that are not unconsciously born in the artist are not works of art, although every artifice of aesthetic manipulation have been em- ployed. Every original and powerful idea in science is born of unconsciousness like a stroke of lightning. We need but glance at every-day life to become convinced of how instinctive in its workings the whole mechanism of human ex- istence is. Take the habits and customs of ordinary social life. When do we ever hear of reasons for acting in this manner or in that ? We act so because things are not otherwise than they are, because we must, because others do so. We all know how impos- sible it is to convince a person who can advance no reasons for his conduct, that his way of thinking is wrong. If there were a pos- sible prospect of being able to do this in the case of a man, it would certainly fail with a woman, whose springs of life are pre-eminently more instinctive than man's. In fact, a man who does not act and live instinctively is ridiculed and despised : he is no longer capable of inspiration and enthusiasm for any cause. The deposits, therefore, of the unconscious workings of the human mind in the customs and conceptions of nations, are a source of incalculable importance to the understanding of the human soul ; and the history of social activity furnishes an in- finitely more copious material to this end than could be obtained by introspection and observation of the psychical life of a single human individual. An important part of our psychical life, which for the most part does not directly appear in consciousness, can thus be gathered from the customs and conceptions of the peoples of the earth. Our statements as to consciousness in general are likewise true of the jural sense. The jural sense b}- no means exhausts the totality of psychical processes which constitute the jural life of a man. More properly, the majority of these processes come into 20 INTRODUCTION [§ 2. the jural consciousness as results, as feelings and desires, or as instinctive jural judgments ; while the genesis of these psychical formations are hidden in unconsciousness. But in the jural in- stitutions and conceptions of nations a great deal of jural life comes to light that remains unknown to the individual, and so it is pos- sible to penetrate much farther by this method into the cognition of the human mind in its jural aspects than was possible by the ob- servation of one's own jural sense or by observing the expressions of the jural sense of single individuals. But apart from this broad psychological standpoint, the very nature of Law itself indicates that the individuo-psychological method can lead to nothing, and that only the socio-psychological method can produce satisfactory results. It will appear on closer observation that the individual jural sense is not the creator of the jural order, but on the contrary, that the individual jural sense is a product of law as a sphere of social life. Only in so far as the jural sense is consciousness -per se are we concerned with a biological basis ; in so far, however, as it is a jural consciousness, the foun- dation is sociological. The human consciousness has a physical basis in the central organs of the body, but we should search in vain in the human body for an organ that is the seat of the moral or jural sense. A human being, reared in a state of perfect isola- tion, would think because he possessed a brain and had to use it in the struggle with nature. But we should find no trace of a moral sense or a jural sense in such a person. The}" are both the exclusive product of 1 ife in human society. They first arise through adaptation to the social relations in which men live, and not until this adaptation is perfected does human consciousness acquire, among innumerable other notions, conceptions of right and wrong, of rights and obligations. The jural order, therefore, is not to be explained from the nature of the human individual, but from the nature of the social bodies in which it has been evolved. And it is only from this source that the individual jural sense also becomes intelligible. Although the jural sense acts purely from instinct within us, it is nevertheless the creation of social and not of individual factors. This will appear from the fact that it acts in opposition to individ- ual inclination. How are we to find one biological basis for the two psychical forces that come into conflict when the individual becomes possessed of an inclination to commit a crime and his jural sense restrains him from it? And if there be no biological basis, then the psychological theory that a person can control his § 2.] ETHNOLOGICAL JURISPRUDENCE 21 sensuous inclinations by the innate rational faculty rests upon imagination. In reality the controlling element here is not a biological or an individuo-psychological factor, it is a socio- psychological one. The most telling proof that the individual jural sense is not a biological but a sociological product is found in the circumstance that, apart from the changes it suffers as consciousness proper (through age, insanity, etc.), its content is determined by the char- acter of the social community in which the individual lives or has grown up. Were this not the case the jural sense of Frenchmen, Germans, Russians, and Chinese, who had attained the same de- gree of intellectual culture, would be one and the same. But this is obviously not the case. Identity of jural sense means identity of social organisation. The individuo-psychological standpoint, accordingly, is inade- quate for the explanation of the facts of jural life and we must ex- pect really valuable scientific results only from a socio-psychological analysis of jural phenomena. The socio-psychological method proceeds, in its investigation of the causes of jural life, not from the human individual, but from the forms which Law assumes in society, from jural customs, jural conceptions, and jural institutions as they are met with in the life of nations themselves. All these forms arose originally from ex- pressions of the individual jural sense, and these expressions are in their turn founded upon social instincts developed by life in human society. By frequent repetition and the elimination of concrete notions, these expressions gradually lose their indi^■idual character. They become expressions of the corporate jural sense of a concrete sphere of social development. In this way a nation acquires a set of jural customs and jural conceptions, which regu- late its acts and judgments, and whose conservation is entrusted to the government of the social sphere in which they were evoh'ed. In this so-called positive law, the organic law of a nation assumes an objective form. It is a precipitate, in a social shape, of the jural sense, just as religious rites, forms of divinity, and doctrinal faith are the precipitates of the religious sense, or human language of human thought. In the positive law of a definite epoch lies, essentially, the normal jural sense of the totality of indi\iduals embraced within a single sphere of social development, as founded upon the jural order transmitted from previous generations. 22 INTRODUCTION [§ 2. These positive laws constitute the combined data of the socio- psychological investigations of jural life ; and they are full of promise. In the evolution of positive laws the creative national genius has instinctively accomplished a scientific work, such as could only be obtained by thoroughly analysing the utterances of the jural sense of all the individuals that now live or ever have lived within the social sphere governed by the positive law in question. The study of the individual jural sense is thus in reality unnec- essary, and the science of jurisprudence may begin at once with the analysis of positive laws. The question now arises as to what method of conducting the analysis of jural life, as a field of social activity, will be most pro- ductive of results. It is obvious that in the first place the jural customs and jural hotions of all the nations of the earth must be carefully collated and accurately described. For only the aggregate of all the expressions of the jural sense of mankind can afford material warranting inferences as to the nature of the human jural sense in general. And since the mass of jural customs and jural notions neces- sary to this task lies scattered among very many different peoples, it follows that the natural classification of the material will be ac- cording to the nationalities in which the notions in question prevail. Such a collection of the jural customs and notions of all man- kind arranged according to nations, would afford a higlily useful basis for juridical research. It would be possible to carry out, within this framework, a uniform and systematic arrangement of the material. There are numerous customs and conceptions which repeat themselves among different peoples, and these would serve as the leading divisions of the systematised arrangement we have in mind. The following, for instance, might properly be regarded as divisions : the relations of kinship as derived from mother-right, father-right, and parental rights generally, with the stages of tran- sition between the same, the subsequent development of the bonds of consanguinity (clan-fraternity, milk-tie, foster-tie, etc.), endog- amy and exogamy, wedlock in its various phases (restrained and unrestrained promiscuity, wedlock by groups, polyandrous, polyg- ynous and monogamous wedlock, leviratical marriages), the cap- ture of wives, the acquisition of the bride by service, the purchase of brides, betrothal-rights, obligation of abstinence before and after marriage, suitors, disqualifications to wedlock, forms of mar- § 2.] ETHNOLOGICAL JURISPELTDENCE 23 rying, divorce, second marriage, mourning-time, the status of women and children, age of arming, age of majority, child-bed of the husband, the status of the old and the sick, forbiddance of inter- course between persons near of kin, guardianship, federal and mo- narchic forms of organisation, community of house and farms, sys- tems of joint responsibility and solidarity, blood-feud, rights of refuge, ordeals, forms of oaths, et cetera. This list might be con- tinued for pages. In this material are to be found legal concep- tions and customs of the most widely different nations of the earth which partly agree and partly vary. We could arrange all customs and conceptions under these headings, and the classification so reached would be a preparatory work of great value for the causal analysis of legal customs and conceptions generally. It would then appear in how far given legal customs and conceptions varied among themselves and among different peoples. One foundation for such a causal analysis is afforded by the historical connexion between the legal customs and conceptions of different periods within the same social organisation. But this analysis is only possible where traditions are at hand relating to corresponding legal customs and conceptions taken from the differ- ent periods of the same people's development. As a rule this is only the case with peoples having a history. With peoples having no history these traditions are wanting, unless perchance observa- tions relating to their law be made during different epochs by trav- ellers from civilised nations. The historical method, therefore, in so far as it presents the history of the development of a given legal custom or conception in a given society, is restricted to provinces comparatively limited. So far, we only know of a history of Roman and Germanic law with the beginnings of the history of Slavonic, Celtic, Indian, INIo- saic, and Islamitic law. The history of all the other systems of the earth has not been treated, or at least what has been accomplished is confined to the beginnings. Here and there historical treatment would be possible. But with the majority of the peoples of the earth material for such a treatment is wanting altogether, and will, in all probability, never be accessible. The question arises now whether a really causal anah'sis of legal customs and conceptions is still everywhere possible. The onlj^ aid at the disposal of science here is, as with every such analysis, the method of comparison. But this is possible only when there is an external similarity between legal customs and conceptions. The use of a chronological connexion is here altogether out of the 24 INTRODUCTION [§ 2. question. Can such a comparison yield scientific results of any value whatever, or are we here at the end of our science ? That is the question, the answer to which will determine whether Ethno- logical Jurisprudence is a science at all, or whether it is a will-o'- the-wisp the pursuit of which is to be given up as soon as possible. The question cannot be answered a j^riori: it depends entirely upon our successfulness in arriving at definite results. If we are successful, the method is warranted ; if not, the attempt goes for naught. The scientific possibility of a purely comparative method depends upon facts, the existence or non-existence of which can only be determined by the application of the method itself. The question is whether in the development of human law definite legal customs and conceptions exist and regularly occur even among un- related peoples, or whether the law of every people, at least of every kindred group of peoples, is an isolated product standing in no relation whatever to the law of other peoples. If there be rules of legal conduct which recur everywhere on the globe and which pass through a stated course of development, the method by com- parison is applicable : to explain a given legal custom of one na- tion we may avail ourselves of the corresponding legal customs of another. If such be not the case, a purely comparative method is a scientific chimera. For instance, if a table of the legal customs of all the nations of the earth were to present such a picture as the languages of all the nations of the earth (e.g. in Franz Miiller's " Grundriss der Sprachwissenschaft"), a purely comparative method such as I have employed in my works upon ethnological jurisprudence, would be out of the question. A comparison of non-cognate tongues is im- possible, for these are isolated formations. It may be that certain results for the general evolution of human thought could be ob- tained only from a conspectus of all the languages of the earth; but generally languages are isolated products of certain ethnic groups. With other creations of social life this is not the case. The evolution of the religious sense affords phenomena of manifold similarities, which extend far beyond the boundaries of philological races ; and so the jural life of mankind affords a succession of phe- nomena which are not the especial creations of certain peoples or of a certain congeries of peoples, but which recur on the contrary in wide domains, among unrelated nations, and extend over such broad fields that they may be regarded as the common and univer- sal property of the whole race. When such analogous legal customs and conceptions are dis- §2.] ETHNOLOGICAL JURISPRLDENCE 25 covered among unrelated peoples of the earth, it then becomes a question whether they owe their origin to analogous causes ; for phenomena of jural life which are outwardly alike may rest upon quite dissimilar causes. Yet we may attempt to explain one by the other, and whether this is possible, we shall soon discover. When we meet with the same or a similar legal custom among many peo- ples, we usuall}' find a sphere of ideas which readily explains it. Whilst certain legal customs and conceptions occur only within ex- tremely limited domains, and do not lend themselves at all to the comparative method, on the other hand we meet with such as re- cur among all possible peoples and races in infinite variations, and the divergences are such that we are often unavoidably led to as- sume that these isolated customs represent different stages in the development of a jural institution which in its fundamental fea- tures is everywhere uniform. This can be shown only by illus- trations, and it remains for me to explain what I mean by a definite example. Thus under the rubric of leviratical marriages we may include a group of phenomena regarding which we possess accounts from the most diverse peoples of the earth, varying greatly in compass and credibility. Such accounts are for instance the following : 1. North American Indians Among the Kolushes the brother or sister's son receives the widow of the deceased in marriage. Among the Ojibways and the Omahas the widow became the wife of her brother-in-law after the mourning period was over, and the latter had to care for the chil- dren of his deceased brother. 2. Aztec and Toltec Nations In the States of Anahuac a man was only allowed to marry the widow of his deceased brother when children were still living whose education had to be cared for. 3. Soidh American Indians Among the Arawaks a second marriage is not left to the will of the widow, for the nearest relative of the deceased husband has the right to marry her, and the latter may thereby often become the second or third wife unless sold to a third party. If she marry any one without the consent of the lawful heir, the deadliest feuds 26 INTRODUCTION [§ 2. may result. Among the Calcliaquis in the interior of Brazil, the brother marries the widow of his brother, to beget descendants for the deceased. According to Von IVIartius, it is a custom rigor- ously practised among all Brazilian Indians, that upon the death of a husband the eldest brother, or in case there be none, the near- est male relative of the deceased marries the widow, and the wid- ow's brother marries her daughter; which is the case with the Mundrucus, Uainumas, Juris, INIauhes, Passes, and Coerunas. 4. Oceanic Peoples In Australia when the husband or affianced dies, his brother on his mother's side inherits his wife and children ; the widow re- pairs to him with her children after the interval of three days. In Western Australia the brother of the deceased has a right to the widow, and, if he choose, may take her for himself. On the Flin- ders Islands, near Australia, if the husband die his brother marries his wife. Among the Polynesians the brother of the deceased is re- garded as the husband of the widow and the father of the de- ceased's children. 5. Semitic arid Cognate Peoples Among the Bedouins, if a young husband leave a widow, his brother as a rule offers to marry her ; but it is not in his power to force her to marry him. With the Beni Amer, if the brothers of a deceased husband do not wish to marry his widow, she can, after the expiration of the mourning period, marry at her own will, and she may not be forced into marriage by the brother of her deceased husband. With the Barea and Kunama, if a man die, his widow is married without further ado by his brother of the same mother, or ultimately by the son of the deceased's man's sister. With sev- eral Berber tribes of the Atlas region, the male relative who after the death of her first spouse first throws his shawl (Haik) over the widow, becomes her husband and has to care for her children and manage her property. Among the Bogos, when a married man dies, his sons by a previous marriage, his brothers or next of kin, succeed to his wife, that is, marry her, without further consultation with her father. Among the Hebrews leviratical marriages occur in the following form : If brethren live together and one of them die and have no child, the wife of the deceased shall not marry § 2.] ETHNOLOGICAL JURISPRLrDENCE 27 without unto a stranger : her husband's brother shall go in unto her and take her to him to wife. And it shall be that the first born which she beareth shall succeed in the name of his brother which is dead, that his name shall be not put out of Israel. With the Galla, the brother must marry the widow of his deceased brother. With the Somali, the widow may marry again only with one of her husband's nearest relatives, who has to pay her half of her first dowry ; if the latter die too, his wife is married to one of the same family for a compensation of one-fourth of the first sum. If the wife die, the husband has the right to demand in marriage an un- married sister of his dead wife for one-half of the marriage dowry. 6. Negro and Congo Peoples In the interior of western equatorial Africa, the nephew mar- ries the relics of his maternal uncle, and with the Bakalai the son marries the widows of his father, with the exception of his own mother. With the Bechuana the son succeeds to all his father's wives, and if an older brother die, the younger brother comes by his wives. 7. Indo-Germanic Peoples With the Afghans the brother is bound to marry the widow of a deceased brother if she wish it. In the laws of ]Manu, leviratical marriage occurs only in case a virgin widow be left. In the latter case, the same custom prevails among the Ideyars in South India, among the Jat families in the Punjab, and with some of the Rajput classes of Central India. It occurred in the old German law, that the heir to whom the guardianship of the widow came with the in- heritance, particularly the brother of the deceased or indeed her own stepson, took the widow to himself as though part of the in- heritance. ******* From such a collection of ethnological facts, embracing the whole earth and including the customs of nations in no ways re- lated, no one, unless starting from a prejudiced point of view, could entertain the supposition that it were possible for such strange phenomena, agreeing in so many particulars, to rest every- where upon causes different in character and place. There can be no doubt that broader foundations to these exist ; they must repose upon universal forms of social organisation, — forms which in indi- vidual instances find diversified expression onh*. 28 INTRODUCTION [§ 2. These universal forms of organisation are not to be discovered directly from the facts themselves : to determine them a person must possess a knowledge of the general jural status of the nations in question, and this knowledge can be obtained only from ac- counts of the legal customs of the said peoples. With the aid of information thus obtained, no doubt can be entertained that all the above mentioned customs belong to a form of organisation which extends over the whole earth, and which is exhibited exclusively among peoples living in a state of nature — viz., the clan. Thence arise characteristic conceptions of law which are repeated in all the customs above mentioned. It is a universal principle of the clan-system that women are not independent subjects of jural rela- tions, that they are, so to speak, pieces of property belonging to the clan. They stand under the guardianship of the clan, which disposes of them at will, but which likewise provides for their maintenance. These rights and duties of guardianship are lodged by preference in the hands of a definite person, the head of the family, and after the latter 's decease fall to the person who suc- ceeds him. And so the women of the family chief pass to the new family chief by way of inheritance, and the same rights and duties that the former chief possessed, arise in the person of his suc- cessor. With the gradual disintegration of the clan-system women acquire more and more recognised legal status, while the right and duty of guardianship becomes more and more invalidated. This is the fundamental principle upon which all the above- mentioned customs rest. If the guardian of a woman die, the lat- ter passes by inheritance to the person to whom the guardianship now falls. According to the strict interpretation of tribal institu- tions, there lies in the idea of guardianship the right of absolute disposal on the one hand, and on the other the obligation to pro- vide for the woman in question. A great number of other conceptions of clan-law might be ad- duced in explanation of the customs mentioned. 1 . First, two systems of relationship exist in the clan : the system of mother-right, agreeably to which relationship is deter- mined solely through the female line, and the system of father- right, agreeably to which relationship is determined solely through the male line. Descent and guardianship conform to these sys- tems. The third system that occurs, the system of parent-right generall}^ whereby the relationship is determined through the male as well as the female line, first appears after the dissolution of the clan-svstem. § 2.] ETHNOLOGICAL JLTRISPRLTDENCE 29 It appears from the instances cited, that leviratical marriages and inheritance of women occur as well under the system of mother-right as under that of father-right. Under mother-right, women are transferred among the North American Indians, Austra- lians, Barea, Kunama, and among the tribes of equatorial Africa, according to the systems respectively prevailing among these peo- ples. Under father-right, women are transferred among the peo- ples of the ]MaIay peninsula, the Himalaya and Caucasus districts, among the INIongolic-Tartaric, most of the Semitic, most of the Negro, Congo, and Indo-Germanic peoples, according to the s^-s- tems respectively prevailing among them. Here and there the ac- counts fail in establishing whether inheritance takes place accord- ing to mother-right or father-right, and since both systems often exist side by side, these instances demand more detailed investiga- tion. With the Brazilian tribes mentioned a complication of father and mother-right is found. The widow is married b}' the nearest relative according to the patriarchal system, while the daughter is married by her mother's brother on the maternal side according to the matriarchal system. With the Dyaks, who live according to parent-right, levirat- ical marriages are in a state of total decadence. The widow may be freed from marriage with the nearest relative of her husband by surrendering her property to the family of such relative. 2. In strict conformity to clan-law, the nearest male-relation of the deceased husband is empowered and obligated to take the widow in marriage, while the consent of the widow is not asked. After the dissolution of the clan the heir generally continues to en- joy the right of marrying the widow, although no longer obliged to do so ; on the other hand, he is still obliged to provide for her, although he may become absolved from this duty by giving her in marriage to another person — a procedure empowered by his guardian-right of disposition. The widow acquires the privilege of no longer being forced to marry without her consent the person that inherits her ; but on the other hand she is not allowed to enter into another marriage without his approval. If a third person should marry her without the consent of the heir, he would be guilty of an infraction of the heir's guardian rights, and according to clan-law this leads to blood-feud. Here belong the customs of the Arawaks, the Australians, the Malayans, and most of the others mentioned. 3. All male relatives are entitled to such inheritance who, ac- cording to the system of kinship prevailing, are next of kin. 30 INTRODUCTION [§ 2. Thus the sister's son or mother's brother, according to mother- right, and according to father-right the son or the brother on the father's side, inherit the wives as well as the property and enter into marriage with the former by inheritance. The brothers of the deceased figure in almost all the customs mentioned. The sister's son figures as heir, for example, among the Kolushes, the Barea, and Kunamas, in equatorial Africa ; the son, among the Tunguses, the Bakalai, the Bechuana, the Kafhrs. The only exception to the inheritance of the son is his natural mother, who falls to a brother of the father. In accordance with the notion that the right of guardianship resides in the whole clan, all members thereof are in a mediate way supposed to be entitled to the inheritance, as is the case among the Alfurs. 4. A legal custom prevailing among all clan-organisations is the purchase of the bride. The family of the female, or its clan- head, sells the future wife for a certain sum to the family of the fu- ture husband, or to the latter in person. By this sale the family of the female either renounces all claims to the wife, or certain de- fined rights still remain witl^ them. When the wife is transferred by marriage to the family of her husband, she remains there even after his death. The family of her husband has to dispose of and care for her : she stands under the guardianship of her husband's family. Without the consent of the latter she is not allowed to en- ter into marriage with a third person, and in case of such a mar- riage her deceased husband's family receives the amount paid for her as bride. If a kinsman of the deceased husband marry the widow, no bridal price is paid the family of the female, provided all rights have passed to the family of the husband through the original bridal purchase. Otherwise, a smaller payment is made at remarriage. If the guardian-rights of the female's family are not totally abolished by the bridal purchase, the relations between the family of the female and the family of the husband may take various shapes. Thus among the Benget-Igorrots the wife belongs to the fam- ily of the deceased husband, and among the Papuas of Geelvink Bay and on the Aru islands the family of the husband gets the bridal sum for the widow who enters into an alien marriage. No bridal sum is paid among the Alfures of Burn and on the Aru islands in case of leviratical marriages. The law of the Somali is also to be compared here. § 2.] ETHNOLOGICAL JURISPRLDEXCE 31 The rights of the wife's family still appear in the custom of pre-emption, which is mentioned among the Usbegs, in the law of Timor, where the next of kin to the deceased can absolve himself from the obligation of providing for the widow by the payment of a certain sum to her family. 5. To the clan-guardianship already noticed, belongs the cus- tom of the Karo-Karo according to which, if there be no near rela- tive of the deceased to take the widow, the family chief assigns the latter a spouse from the jNIarga of the deceased husband. And sim- ilarly among the Circassians, the widow and her children pass to another member of the clan. The provision here is quite charac- teristic that the clan has no obligations in this line if the widow be too old for marriage. With the Bechuana also the whole kindred determines which among the kinsmen has to marry the widow. 6. The provisions of the Batak-law of Angola and Sipirong are to be taken into consideration here according to which the widow of the elder brother always falls to the younger brother, while the marriage of the elder brother with the widow of the younger is regarded as incest. On the other hand, with the Alfures of Buru the eldest brother of the deceased inherits the widow of the deceased, whereas a brother younger than the deceased hus- band may not marr\' the latter's widow. This last provision ap- pears to owe its existence to entirely specific causes. With the IMalagasy the brother next succeeding marries the widow. With the Khatties the widow of the elder brother falls to the younger, while the widow of the younger brother may do as she pleases. It thus appears that also in this instance the elder brother can make no claim to the widow of the younger. With the Chassaks the women pass from one brother to another in the line of succession, apparently thus : the widow of the elder brother, always to the next younger. With the Bechuana also the younger brother suc- ceeds to the widow of the elder. And so it appears to be the rule in general, that the next younger brother is in e\'ery case author- ised and obligated to contract leviratical marriages. 7. A peculiar group is formed by the leviratical marriages of the Calchaquis in the interior of Brazil, of the IMalagasy , and of the Hebrews. In these instances the object of leviratical marriage is to perpetuate the family of the deceased — an object which is aimed at by many other features of the clan-system. Children be- gotten in leviratical marriage are considered the children of the de- ceased husband. The law of the Malagasy recognises all children as such ; that of the Hebrews onlv the first son. AVith the Ossetes 32 INTRODUCTION [§ 2. the same thing reappears as with the INIalagasy : only in this in- stance the widow's children which are subsequently born out of wedlock, also pass for the children of the deceased husband, just as among the Kaffirs natural children of widows pass as the chil- dren of the deceased husband and consequently fall to the latter's heirs. 8. To the decadence of the clan-system belong those customs according to which the obligation to marry the widow is only a duty of propriety, and according to which the woman must consent to the marriage ; in the first place, however, the provision of the law of Anahuac whereby a leviratical marriage is permissible only when the education of the deceased brother's children has to be provided for. 9. To an entirely different group belongs the custom of Po- napi, according to which, upon the death of a wife, the widower marries her sister. This custom is also found among the North American Indians, the Knistineaux and the Selish, and in many other districts besides. It is found among the Somali together with the customs above noticed. There may be a close relation between this and the legal principle so widely diffused that the wdfe's family stands security to the man in bridal purchase that he shall keep his wife, and that if she die, a new one shall be substi- tuted. Yet the matter might be considered from other points of view, and more thorough investigation is demanded for an ade- quate explanation of this phenomenon. Numerous groups of facts similar to those just discussed may be discovered in the jural life of the peoples of the earth, and this being the case, it will no longer be possible to deny that the purely comparative method is allowable in the province of jurisprudence; and this holds true, whatever individual opinions may be as to the value of the facts reported and the inferences drawn from them. That the inferences are unsafe, is at once evident. This comes from the fact that sufficient material is not yet at hand and has not yet been properly assorted. But it is just as perfectly evident that inferences have to be drawn and will have to be drawn still. The material would never be procured, if it could not be shown from such inferences that a collection of facts in the direction indi- cated would lead to solid scientific results. Furthermore it is only through inferences of this sort that points of view can be won from which further work may be directed with intelligence. For all ma- terial is certainly not of equal value to science, and the tendency § 2.] ETHNOLOGICAL JURISPRUDENCE 33 to delve into irrelevant details is widely prevalent in learned cir- cles, and especially in Germany. On the other hand, one must be on one's guard against pronouncing a discovered fact irrelevant because we do not happen to know at the time of any analogous phenomenon. It is impossible to prescribe a detailed method of procedure for the field of ethnological jurisprudence. Such a method must first result from the very material to which it is applied. At present we can offer but a few general points for considera- tion : 1. Although the collection of material must take place with separate races and nations (and the most detailed observations are here of the highest value), nevertheless in the causal analysis of the jural customs of a single nation, it is highly expedient always to adduce the corresponding jural facts of cognate as well as of non- cognate peoples : for we may thus avoid such false conclusions as easily arise from insufficient material in treating of a definite cus- tom of a given people. This is but the extension of a view which has already asserted itself in the investigation of the history of law. An exposition of what is stipulated in the law of a single Euro- pean municipality would be much more exhaustive if expounded from other sources beside its own and if the laws of kindred mu- nicipalities were adduced in explanation. In wider fields, the re- cent study of Indian Law has aided considerably in perfecting the expositions of Germanic, Roman, Grecian, and Celtic customary law. If legal customs exist which are more universal and which prevail throughout extended ethnic fields, it is certain that an un- derstanding of these is of proportionately more value if the expla- nation of such a custom in a single nation is under consideration. We do not wish to say by this that no attempt should be made to expound the legal custom first from the more limited sphere in which it appears. On the contrary, this endeavor should be aided as much as possible, and historical investigation in particular should be pushed as far as practicable in the separate provinces. But in any single province of law, historical investigation will always reach a point where original material no longer warrants conclusions of demonstrable certainty. Vagrant hypotheses neces- sarily arise, where the admission of facts from more extended re- gions might lead to safe conclusions. It is quite obvious that in considering the laws of peoples having no history, a comprehensi.e understanding of the laws of all other peoples of the earth possesses 34 INTRODUCTION [§ 2. incomparably higher value than in the case of peoples that do pos- sess a history ; indeed it is indispensable in the first instance if false conclusions are to be avoided. It must therefore be recom- mended to those who intend to labor scientifically in the field of ethnological jurisprudence, first to acquire at least a tolerable knowledge of every existing legal system before entering upon more limited fields of research : otherwise they will always be liable to partial judgments. Even for the mere collection of legal cus- toms, this will be expedient, for an investigator with European opinions of law might very easily receive a wrong impression from a legal custom discovered among a people living in a state of na- ture. The causal analysis will be the more correct, in proportion as the investigator's knowledge of all existing systems of law is the more comprehensive. 2. The history of law deals with historical data in their chron- ological succession. Ethnology in so far as it treats of peoples having no history does not recognise such a connexion ; it has no chronology. Ethnology takes no cognizance of decades or cen- turies : it has to do with periods and strata onl}', somewhat like geology. In any epoch you choose ethnology meets with all man- ner of legal customs, from the lowest and crudest to those of the highest development, existing near each other and among all na- tions of the earth. The materials whereon it can found its conclu- sions are like or analogous data, and such data among the different peoples of the earth are separated from one another not by decades but by hundreds and thousands of j'ears. Legal customs which are practised to-day among one people, belong to the most primitive periods of another. The chronology of ethnological jurisprudence is not a computation of years from a point of time arbitrarily adopted. It is the graduated scale of development which any characteristic legal custom or conception has passed through among the different people with whom it is found. This idea can be transferred to historic nations also and with important results. Every living historic nation still rests in its un- dermost strata upon the primitive society whence it has arisen , and upon this foundation strata upon strata of culture and civilisation are piled. All these strata still lie one above the other in the posi- tive law of a people of any period. Even in the most recent of modern codifications there is an abundance of heirlooms from prim- itive times, and we may trace in the current law of to-day the his- tory of its development as easily as we can trace in the structure of the human body the history of the human race. This point, too. § 2.] ETHNOLOGICAL JURISPRUDENCE 35 may often become of great importance in explaining any single legal custom ; for it is often impossible to explain such customs from the times in which they occur, it being necessary to recur to periods long since past. 3. Hitherto, the science of jurisprudence has believed that it possessed the most valuable material for research in the laws of nations which had reached the highest plane of civilisation, and that it could dispense altogether with the study of civil life among the ruder and more uncivilised peoples. It is exactly upon this point that ethnological jurisprudence must lay the greatest empha- sis, for only in the laws of uncivilised peoples are the germinal con- ditions of law to be discovered, and for universal history of the development of law a knowledge of the latter conditions is indis- pensable. As the science of physiology is based upon the physiol- ogy of the cell, so will the future science of jurisprudence be founded upon the germinal element of civil society' — the primitive gens. And this primitive gens as an elementary form is to be found at present only among purely aboriginal peoples. 4. Social customs and conceptions, as we find them among the nations of the earth, are regarded by the ethnologist as organic products. The fact of their existence can no more be subjected to criticism than the fact of the existence of individual plant or ani- mal species, than the fact of the existence of a solar system or of the universe at large. They are regarded as natural growths, and merely the causes that have produced them are made the subject of ethnological research. In the same manner the legal customs and conceptions of the various nations of the earth, are regarded by ethnological jurisprudence as irreversible facts. They too are not to be subjected to sesthetical or ethical criticism from the indi- vidual standpoint. They are to be investigated objectively in ref- erence to their causes, just as we examine a plant or an animal in search of the laws of its growth and the conditions of its life. In ethnology, therefore, and particularly in ethnological juris- prudence, the question never arises as to whether a thing be good or bad, right or wrong, true or untrue, beautiful or ugly. The sole question is whether a certain custom or conception really exists in the life of the nations ; and if it exist, why ? and if not, why ? No importance can be attached here to the judgments of individuals regarding such a custom or conception ; and if ethnology and eth- nological jurisprudence are to acquire a strictly scientific character, this purely objective standpoint is to be rigorously adhered to. Individual estimation is an extremely inconstant factor, and 36 INTRODUCTION [§ 3, 1. its recognition would utterly invalidate a strict and scientific treat- ment of ethnological subjects. An exhibition of indignation on the part of an ethnologist at relatively immoral practices, adds nothing to the solution of ethnological problems. It matters not whether a people live without the institution of marriage, practice cannibal- ism, offer human sacrifices, impale its wrong-doers or burn its witches and sorcerers ; for the sentimental disapproval of such practices, in investigation, tends to disarrange that equipoise of judgment which is requisite to determining the causal relation ex- isting between ethnological phenomena. The ethnologist is called upon to seek this causal relation with the cold indifference of the anatomist. A person who speaks of senseless customs and sense- less institutions, is not fitted to engage in ethnological research. The above are the principal points of view which at present admit of establishment for ethnological jurisprudence. Others may suggest themselves as the science is further developed. Section 3 THE ORIGIN OF LEGAL INSTITUTIONS 1. The Imitation Theory^ Of all phases of social life the law is that one in which philo- sophical speculation has in our day been the least exercised. It has been given full scope in comparative philology and mythology in politics, in morals, in esthetics, in political economy ; but the Codes have inspired its fear. It has left the law to the jurists, — the mine to the miners. Has it recoiled, I know not why, from the special studies which the development of that new vein would demand ? Or is there between the juridical and the philosophic spirit a certain incompatibility of nature? Be that as it may, this surrender of the legal field to mere day- 1 [This passage is from the Introduction and Chapter VII of "Les transformations du Droit." by Gabriel Tarde (Paris, 1st ed. 1893, 7th ed., 1912 ; the 7th edition is a reprint of the first, with the addition of a Preface taking account of the criticisms of M. Girard, printed post, as § 2). INI. Tarde, eminent as magistrate, psychologist, and sociologist, died in 1909 ; an account of his work is given in the editorial preface to the translation of his " Penal Philosophy " (Alodern Criminal Science Series, 1913). ISIme. Tarde has consented to the translation; from ad- vance copy of which, by Shcpord Barclay, of St. Louis, the parts presented here were selected and edited.] § 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 37 laborers (known as commentators) and to men of business has had unfortunate results. The science of Law itself has remained isolated and sterile, dominated by its own domestic routine. And the other sciences, too, have suffered, that of economics especially, which has forgot its parentage and its rights of joint inheritance and has unconsciously overpassed its natural bound- aries. The socialistic reaction, arising so enthusiastically in the latter half of the 1800 s, against the old-school economics was in part due to the latter's unwitting encroachments ; for there was no worthy and powerful theory of law to impose a rival and fra- ternal check upon the ambitious theories of wealth put forth by economics. I. The Theory of a Uniform Ewlution; its Fallacies But for some years past we have been witnessing the rise of a new influence in criminal law, — the influence of Darwinism, of evolution, of anthropology ; and this influence, rapidly increas- ing and spreading, has begun to gain a foothold within the civil field of law.^ Already, indeed, the learned researches of the archaeologists of our legal system had prepared the ground. Until they appeared, the Roman law was the only one studied histori- cally with complete thoroughness. For the theoretical jurist, it had always been what the Scriptures were to the. historian of old, — a unique and sacred phenomenon, totally incomparable with anything else, and hence, for lack of standards of comparison, absolutely beyond the sphere of explanation. But when the Egyptologists and the Assyriologists of to-day revealed to us the Egyptian law, the Assyrian law ; when similar researches into the relics of the Indo-European and Semitic families, of the Germans, Slavs, Persians, Celts, as well as of the ^Moslems, of the Hebrews, etc., furnished for us, little by little, a vast juridical museum (of which ]\I. Dareste,- among us, might be called the conservator), then the traditional orthodox legal science began to feel a sudden expansion and rejuvenation. Nevertheless, it would be misleading to suppose, because one had noted many and striking resemblances between different languages and founded a comparative philology, that he had ^ It is worth noting that in all epochs the reconstruction of a legal system — the grafting of new ideas on the juristic tree — has begun with the criminal law, the earliest branch to put forth new shoots, and always ^the one most prominent for our attention. 2 "Etudes d'histoire du Droit," by M. Dareste, of the Institute (Lerose et Forcel. 1889). 75IS7 38 INTRODUCTION [§ 3, 1. made a theory of language. It would be a like error to persuade oneself that it is sufficient for a lawyer-philosopher to have dis- covered some resemblances between certain developments in the law, more or less independent the one of the other, and thus created a comparative jurisprudence. Those resemblances are only the materials of the problem to solve ; the point is first to limit them, to replace them in their natural positions, often dis- turbed by excessive ingenuity, and to interpret them by tracing back their causes. These are of two kinds, organic or social. The first are found in the inherent and hereditary wants of human nature, which continue the same despite diversity of races and of tim.es; the second, in wants derived and acquired by imitative contact between man and man. It is needful to join these two incomplete acts to understand the historical transformations of the Law, as well as those of language, of religion, of institutions, of industries, of manners. But, to join them, one must by all means not con- fuse them, but rather distinguish them, with all the nicety pos- sible, and give to each of them its proper part. Not but that admirable philosophic works on the law have appeared, here and there, exceptionally. Suffice it to cite the leading effort of Sir Henry JNIaine, on "Ancient Law," and the remarkable studies which followed it. But we find that the school of evolution, although rapidly advancing, although quick to in- spire flights beyond its cradle in Darwinism, has shown itself most backward in respect of the Law. IMaine is not committed to it except by a sort of collateral relationship, quite distant ; and it was the historical school, very French in its origin, that antici- pated the advent of either Darwin or Spencer into the world. It is true that in penal law there has been dabbling with the doc- trine of evolution for several years. But yet there is much more of "criminal anthropology" than of penal evolution in questidn therein. As to the civil law, it has remained outside the scope of the movement until a much later period. Note, nevertheless, that we already hear announced the terms "juridical anthropol- ogy" and "juridical evolution" ; but more like the names which old geographers used to give in advance to partly unexplored regions of Africa or America. In reality, without ignoring the merit of tiie first explorers of those unknown lands, we may be allowed to believe that they have left quite a crop to be gleaned after them. Further is it manifest that many explorers strive to launch out in their footsteps. §3, 1.] THE ORIGIN OF LEGAL IXSTITUTIOXS 39 The historians and archaeologists of the law had long since pre- pared the roads for them. But history and archaeology appear, unhappily, to be subjects the least in mind of the disciples of Herbert Spencer, who, applying here a general formula of evolution, the magic key of the universe, accept for explanation its application pure and simple. It is true that the new evolutionists of the Law are, in general, also anthropologists,^ and we may anticipate from this junction of anthropological researches with the grand constructive systems of Darwin and Spencer the most fortunate result. We may ven- ture to believe that a minute comprehension, in detail, of the organs and needs of the individual, as furnished by the one, would complement or temper the inordinate tendency to generalization suggested by the other ; that the one would allow us for the first time to introduce to the law of the future its true ideal, the pur- suit of a Law truly natural conforming to the natural demands of the human organism, while the other would unfold the necessity of the ^■icissitudes encountered by the Law of the past in the course of its history. But truth obliges me to confess that, until how at least, this confluence of the two great schools has not been very productive in stable ideas, nor do I yet see arising, among the many small towers of Babel, hastily constructed, in the law, any Eiffel tower to dim in its shadow the prior works of INIaine and of Fustel de Coulanges. The "Ancient City" of the latter, despite even its comments on the origin of the feudal system, unhappily marred by the spirit of system and of useless polemics, stands as one of those works which indirectly has best penetrated the very life of the Law and the secrets of its changes.^ As to the "Ancient Law" and other works of the great English law-philosopher, although wholly devoid themselves of ambitious pretensions, they w^ould seem to have extracted from our subject all the philosophic sweet that it contains. But, nevertheless, that is an illusion; 1 For instance, M. Letoitrneau, author of the "Evohition juridique" (1891) ancL. M. Giuseppe d'Aguanno, whose book entited "La genese e I'evoluzione del diritto civile secondo le resultanze delle science authro- pologiche e storico-soeiali " (Turin, 1890), will have considerable claim on our attention. We refer again, in another line of thought, to the work of Ihering on the "Struggle for Law." It is high time that the famous "struggle for life" had a word to saj' in the law. 2 Excessive and exclusive study of the wTitten word led that great historian, at the close of his career to become biased, so as to be unjust in respect of the discoveries of others. It is curious, for instance, to see him reproaching M. de Laveleye, ]M. Glasson. etc., for their use of the comparative method, which was the very feature giving value to his chief work, the "Ancient Cit3\" 40 INTRODUCTION [§ 3, 1. and there remain yet, assuredly, many other discoveries to be made in this field so little or so poorly explored. . . . Much clearer ostensibly than the idea of a "legal anthropology" is that of "legal evolution." Nevertheless, it also has great need of being defined. If it does nothing more than to substitute for the study of the Roman law that of the Aztec law, of the Peruvian law, of the Fuegian law, of the Australian law, of the law of the bronze age or of the stone age (rough or smooth), of all the bar- barian or savage laws whatsoever, to get at the sources of law, the result would only bring a certain amount of easy learning to the aid of a large measure of imagination. And this latter will always command approval of a special audience, if it has that " trite form of originality" Avhich consists in being at one time slow and con- fident, deductive and ingenious — adapted to conform at the same time, by its scientific hypotheses, to the beaten track of opinion and to the taste for novelty. Here, as to some extent generally in sociology, we have greatly imposed upon the savages ; since Spencer, who officially inaugurated the exploitation of that mine of base metal, there are current a small number of stories, always the same, ascribed to several tribes, American, African or Oceanic, which have made the rounds of the sociological press for a long time, under diverse heads. Without a shadow of proof (unless it be such as gives but a surface indication), one is asked to give credence to the idea a priori that the primitive social state, the supposed starting point of Progress, is the same among all savages. It is, however, impossible to close our eyes to the profound dissimilarities which mark real savages, even the lowest ; their word-roots, the grammatical structure of their languages; their ceremonies and their beliefs, their germs of government despotic or paternal, their manners in peace or in war, gentle or fierce, honest or dishonest, their musical melodies, their efforts at art, differ, out and out. But the scholars are not embarrassed by such small things : the savages who are different, are so, they say, because they have raised themselves more or less in the scale of savagery ; even their differences are instructive from the point of view of an original identity, of which they measure the degree of departure ; that does not contradict it. As to savages which have resemblances, they concede at once that those are entirely spontaneous ; they do not in general take into account the great probability of association which was bound to occur, either be- tween them or between their ancestors, in the long night of their history, or perhaps before it ; nor do they think of asking if, at that § 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 41 time, much more naturally than by any supposed formula of singu- lar and inevitable evolution, may not be explained an important part of those resemblances. Unfortunately, this theory is strained. If, by evolution, we are expected to understand a regulated series of phases, of changes, equally inevitable and regularly repeated as those of insects, despite purely accidental and supposedly insignificant variations, is it not necessary, first of all, that the initial phase should be regarded as everywhere the same ? The misfortune, for the trans- formistic theory, is that having taken its birth among naturalists, not sociologists or physicians, it is accustomed to consider as the only possible type of development the single sort, of develop- ment (notable for its routine features) shown by organical beings. It persuades itself too readily that evolution means not only the production of successive phases brought about in obedience to laws of mechanics and of logic, but further reproduction in mul- tiple examples of predetermined phases, by analogy to the suc- cessive ages of an individual animal or vegetable.^ The idea does not occur to them that this law of the ages, thus conceived on the model of those exceptional beings, could not well be applicable, in its entirety, to the solar systems or to the transformations of society ; that the growth of a language, of a religion, of a body of laws, of an art, though it may conform as well to a universal law as the growth of a seed or of a quadruped, may yet otherwise be entirely original and unique in itself. It allows itself too readily to think and to assert that, because every living being is or appears to be - impelled unto death by an internal impulse, there must be also, for every astronomical system, although it may have reached its phase of stable equilibrium, and equally for every language, for every religion, for every law, although it has attained to a state of relative perfection and of settled vitality, an internal necessity of death. Now, that sooner or later it ought probably to encounter from without some destruc- tive shock, in which would be swept away language, religion, legal system (the most stable until then), nothing is easier to concede; ^ One is too apt to confound the connection, truly forcible, between cause and effect, of the conditions with the conditioned, with the con- nection, much more loose and fluctuating, of phase to phase, in any evolu- tion whatsoever. 2 According to Dr. Wcit^sman ("Essais sur I'Heredite," 1892) living monocellular beings are immortal ; they disintegrate themselves, but where is the corpse? Death would be only a "practical process" (in- vention) of life, but a fairly recent one. ]VI. Ddbaeuf also has very curious views thereon, and most profound (in "La matiere brute et la matiere vivante"). / 42 INTRODUCTION [§ 3, 1. thus have perished the antique civiUzations of Asia which long endured without any mishap from war; thus, perhaps, after all will perish creeds attacked by science ; thus ancient China, per- haps, by contact with Europeans. But that violent death, the interruption of an immortality possible and normal, is a very dif- ferent thing from the natural death which nothing living escapes within a time limit approximately marked.^ Before generalizing into a paramount law these last phenomena and many other apparent or real characteristics of life, it would be well to ponder them a little. The model idea of development, instead of being borrowed from natural life, could it not as well be expected from astronomy or from comparative philology or mythology? Are the laws of mechanics and the laws of logic, the one reflected in the other, dominated by those of vegetation and of animality? And is not the notion of development, as it is suggested to us by the celestial mechanism, as being essentially the result of an established and variable balance, or such even as is suggested to us by the logic of individuality or of society as being the result of some harmonious system, indefinitely durable, of thoughts and wills operating without opposition, in good accord among themselves, — is not that notion superior in definiteness, in clearness, in explicative value, to the idea of that insensate and fatal march toward death which our natural life suggests? We shall attempt to outline or to indicate the principal features of the evolution of the Law, considered as a high and complex process of the logic of society ; but at the outset, we have to show the insufficiency of social evolutionism such as it is generally interpreted. A victim to its own fixed theory, it falls fatally into two fallacies : 1° It exaggerates the number and significance of the resemblances which strike the mind, at first sight, when we compare the bodies of supposed foreign laws, one with another, as well as the languages, religions, armies, nations, regarded in their political, industrial, artistic and moral aspects; 2° It holds all those resemblances, true or false, as spontaneous, without according or attempting to accord its legitimate part to the prin- ciple of imitation. It is curious to see those minds calling them- selves " positivists " yield to the seduction of the marvelous, real- ized (according to them) by those multiplied coincidences ; and preferring, to the clear explanation of those resemblances by the ' "Some would like to know if colonies (of animals) disorganize and expire of themselves at the end of a limited period as do the single in- di\iduals which compose them. We have not been able to collect any evidence to establish it." (Espinas, "Soeietes animates, " p. 513.) I §3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 43 contagion of example, their own obscure explanation of atavism or of heredity. We may be allowed to enter into some develop- ments of this subject. The best minds may be warped by sj'stematic preoccupation. For proof thereof I wish none other than INI. Dareste. "One thing which modern works have clearly brought to light," says he, at the opening of his book on the "History of Law," "is the affinity, not to say identity, of diverse primitive legal systems. Philology has disclosed by admirable discoveries a comm.on origin for the greater part of the European languages, which it has found connected with the ancient tongues, now extinct, of India and Persia. Yet more close is the relationship of various laws. Not only have they all undergone analogous transformations, but they often reappear, one and another, feature for feature, and almost word for word, across the most enormous reaches of distance and the longest intervals of time, when any direct borrowing has not been possible ; so that, to explain the resemblance which could not be known to be fortuitous, it is necessary to admit either that the two peoples had one origin and hence a common tradi- tion, or that the same causes everywhere have the same effects." Manifestly, ]\I. Dareste strains much for that last construction ; moreover, we notice, he states the problem quite well, and restricts himself, besides, to comparing the laws of superior races, to the discreet exclusion of savages of every race. But, even within those limits, we observe, he asserts much more than his book proves. Be that as it may, since he expresses himself in that manner, we need not be astonished to see JNI. Letourneau, who extends to all tribes and nations known the field of his compari- sons, ascribing the same unfortunate uniformity to the course of their juridical transformations. Nevertheless with him the truth often has the better of his predisposition ; he admits orig- inal divergencies in the social development, emerging from the lowest savagery, because it would cost him too much to merge republican with monarchical tribes ; and that base of distinction, although at best obviously too narrow, is well to note. In his florid style, he proceeds also to portray strikingly the juridical physiognomy peculiar to each people, entirely "sui generis"; and although he seriously misconceives therein, through a pro- fessed horror of Romanists and imperialism, the commanding originality of the Roman Law, he exalts beyond measure that of the Athenian law, in his love for democracies. The evolutionists, in spite of all, therefore, agree in affirming 44 INTRODUCTION [§ 3, 1. the existence of a peculiar and necessary law of juridical evolution. But their discord appears when they undertake to formulate it and to define the phases which the law would surmount in pass- ing through the course of its history. . . . The truth is [as the present volume aims to demonstrate in detail] that in no one of the principal branches of Law^ does the theory of a uniformity of evolu- tion find any support. And for that matter, most evolutionists are too careful and too sagacious to close their eyes to the important dissimilarities which distinguish the historic transformations of different Laws. But they believe themselves warranted to give thereto but little weight, on the plea that if in each society evo- lution was left to itself, it would adapt itself to their formula. The misfortune is that this hypothesis is untenable. What Law is there which, without influences external and accidental — borrowings from some foreign law or innovations created by ori- ginal genius or even indigenous — would ever be spontaneously transformed? . . . The word "evolution" is deceptive. It is so easy to pronounce that it naturally imparts an impression like that of flowing over sand, without obstacle or pause. But, if we enter into detail, we perceive that the fluidity, the apparent continuity, attributed thus to a series of changes, is imaginary. Take any law, and you will see that its so-called evolution continues to decompose into laborious importations, — most frequently ruddy with new ideas added in, from time to time, from one side or another, suddenly, none knows why. They have been grafted upon it, — be it by a proselytic religion (Christian, Islamic, Buddhist), by external conquest (the Roman law, absorbed more than imposed upon the vanquished, even on the Egyptians and on the Greeks ; the Eng- lish Law replacing the Hindu laws; the French Law islamized in Algeria, etc.), or be it by internal revolutions, which transfer the power of patricians to plebeians, or of the Senate to the Em- peror, or of the Nobility to the Third Estate, etc., or by an inter- mittent infatuation for foreign institution and laws. The ex- amples of this last cause of juridical renovation are numerous : it will suffice us to point out the influence exerted by the Roman Law even beyond the Roman empire, by the Greek law among the Barbarians, by the Chinese Law throughout all oriental Asia, — by the Canon Law% in another way, upon the secular law of the middle ages and of modern times. Now during these painful engraftings, slow to heal and not always successfully, the Law called national appears to have § 3, 1.] THE ORIGIN OF LEGAL IXSTITUTIONS 45 not the least tendency to "evolute"; it only seems inclined to sit still. Each of those advances is an unexpected stroke of a lash which arouses and swaj's it. Can any one seriously pretend that the classic Roman Law waited and aspired to receive the impulse given it by the propaganda of Christianity, and which so strongly byzantinized it in its last stage. Who, from its birth, predestined it to that regenerating impulse? And, to go back further, was it the "actiones legis" of Roman law which of them- selves tended to the formulary system ? The edicts of the praetors, the voted laws, the royal edicts, etc., were mereh' so man}' inter- mittent springs of the law, which never flowed without external stimulus. This supposed necessity of juridical evolution is like that discarded theory which insisted that all language passed through the three successive phases of monosyllabism, of agglu- tination, and of inflection. INIodern linguists know what value to ascribe to that formula. . . . II. The Theory of Imitation No instance of similitude can be found in the Universe w^hich has not as a cause one of the three great forms, superposed and blended, in the universal repetition : undulation (for physical phenomena), heredity (for living phenomena), imitation (for social phenomena properly so-called). I need not repeat here ^ the mutual bearings of these three factors in universal analogy. It is clear that we should take account of the three, and not of the last alone, to furnish a complete explanation of the analogies presented by the world of society, which springs from the living and expires into the physical order. There is then no doubt that the influence of climates and races do not furnish the key to many resemblances observed among social bodies of the same blood or the same latitude. The importance of these two influences in sociology has been much exaggerated, because of ignoring the dominant part of the third, which always ends by using the others or impressing them with its stamp. What is continuous, what is essential, what is subject to laws susceptible of scientific formula- tion, in the events of society, is the characteristic common to them all, and exclusively proper to them collectively, namely, that of being imitative or imitated. - ^ I have devoted to that subject my book on the "Lois de rimitation" (Alean). 2 We do not even except inventions and discoveries in so far as they are sociological facts. Not only are they ahvaj's in part imitative, formed 46 INTRODUCTION [§ 3, 1. Whether imitation is conscious or unconscious, intelligent or stupid, instruction or habit, matters not. Speaking, praying, work- ing, fighting, doing whatsoever sort of social act, involves repeating what one has learned from some one, who had acquired it from some one else ; and so one after another back to the first framers of each word-root transmitted identically from mouth to mouth, for thousands of years, — like the waves of light or sound from atom to atom, — back to the first authors of each form of rites, of each method of labor, of each mode of war, fencing-boots, tac- tics, strategic ruses, which pass from man to man during a period more or less prolonged. I do not say that Imitation is all of social reality ; it is but one expression of the sympathy which antedates it and which it inten- sifies in expressing; and it depends upon invention, the spark from which it is only the greater light. It begins by being in some sort a vassal to Heredity, as long as the social group is con- fined to the family, and the effect of examples is limited to the narrow circle of the relatives. Then, when it became free of the family, when it even dominated in its turn, it yielded so much the more to another rule : it was subjected, we know, to the higher laws of Logic, as was undulation to the laws of mechanics. But it is none the less certain that it alone weaves together the tissues of society arranged by social Logic. It is the w^arp and woof of humanity. The artist views it from the right side, the side of its embroideries, of its variations bright and fleeting ; but which the philosopher is bound to examine from the back, from the side of its repetitions, — singly to be weighed, singly numberable, singly formulable into statistical groups or into scientific laws. What was physics before the theory of undulation had made its entry therein, even though the laws of mechanics were already known ? Very little. So will be sociology, as long as it does not accord due place, a large and controlling part, to the theory of Imita- tion. From failing to observe the universality, the continuity, the greater importance of the fact of Imitation in history, many archeologists, many historians, even the most circumspect and lucid, are led into most erroneous inferences. . . . INI. Fustel de Coulanges himself, after remarking that the feudal system mani- by a mental junction of various imitations, _but again, even in so far as they are most original, they must be imitated to become social facts, not merely individual facts. An invention not utilized, an idea not carried out, not reflected in the soul of another, is as if it did not exist, socially \'iewed. § 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 47 fested itself among peoples not in the least Germanic, in Southern Gaul, the Byzantine Empire, Slavonia, Hungary, Ireland, the same as among those nations who were not in the least Romanic, concludes thus : ' ' It manifested itself among all races ; it is neither Romanic nor German ; it belongs to human nature." Nevertheless, before having recourse to a quasi-miraculous hypothesis of spontaneous generation of that unique system, everywhere the same, in Heaven-knows-how-many different places, is there no room to inquire if its relative ubiquity — exag- gerated, at that — is not explainable by simpler methods of ordi- nary up-building of society, — that is to say, of Imitation ? Xow, all the researches of the eminent historian that I have just cited tend precisely to show that the scattered elements of the feudal system existed almost in entirety in the institutions of the Roman Empire, and that their simultaneous synthetic development has been the result of the special circumstances in which the Roman world of the West, especially Gaul, found itself after the fall of the imperial power. . . . All, then, that is clear, definite, characteristic in resemblances of whatsoever category — whether of language, religion, politics, economics, law — which the evolutionists have pointed out among different peoples, even far apart, has Imitation for its cause. Such, beyond doubt, are the striking analogies presented to those different points of view, by the Hindus, the Germans, the Slavs, the Celts, the Latins, the Greeks, — nations which some are pleased to group, under the name of i\.ryan, in the same hypothet- ical race. Whether that hypothesis prove correct or not, . . . the misfortune is that, when once this family tree of the so-called Aryans had been specifically described (as also that of the Semites and of other extensive race-stocks) scholars began to detect, among peoples unrelated to each other, resemblances in religion and law, equal in exactness and in importance to those of the races regarded as co-related. For instance, the several Aryan peoples, as between themselves, show us nowhere any coinci- dence more complete than that which I\I. Seignette ' has pointed out between the customs of the Arabs before INIahomet and the institutions of the primitive Romans. "The paternal authority in all its rigor, the perpetual tutelage of the women, wills, the ' French translation of the "Code musulman" of Khalil, introduction, p. xxxvii. 48 INTRODUCTION [§ 3, 1. heredity of male descendants, patrons and gentiles, their tutelage testamentary guardianship, the 'nexum,' the 'pignoris capio, the noxal surrender, retaliation, composition for feuds, the rela- tions of patron and client, — all these customs, inscribed in the Roman law of the Twelve Tables, correspond to ante-islamitic usages identically similar, in Arabia, of which some were continued, the others abolished, by the Koran." If we recall the proximity of Arabia and of India, where analogous customs prevailed, and the mutual inclination of neighboring peoples to borrow their civil institutions, much more than their religions and above all, more than their idioms, it is easy to explain those resemblances by imitative action. What confirms this interpretation is the many other points of juridical contact between the Aryans and the Semites. They are of such exactness that their spontaneous appearance is absolutely inconceivable. ... But, perhaps we have not sufficiently remarked upon the direct, immediate action of Imitation upon the law, when it has the latter itself as its objective. By that process, the juridical unity of diverse classes and of diverse provinces of a nation cannot fail to be wrought, in course of time. It unites classes as well as provinces by the everlasting yearning of the inferior to imitate the superior. The juridical customs of the higher classes de- scend, through the various grades of the nobility, to the lowest ranks of the commonalty, and help to obliterate the diversity of their own customs. Likewise, the large cities pass on their char- ters to the small, the small cities to the towns, and their disparity of custom disappears. The most brilliant nations illumine in the same way the more obscure. I have above already indicated the contagious descent of the law of primogeniture from the no- bility to the people. ... In a group of peoples in contact, the most civilized communicates its Law to its neighbors by a sort of juridical exosmosis. Thus, in the middle ages, the Ger- man law penetrated into Bohemia and Poland ; and was intro- duced there at the beginning through the most enlightened strata of the population, through the cities. The law of Magdeburg has served as a model for the greater part of the Cech cities of the north and for nearly all the Polish cities. Italian influence, during the same epoch, made itself felt in the laws of Dalmatia. . . . § 3, 1.] J THE ORIGIN OF LEGAL INSTITUTIONS 49 III. The Element of Logic in Evolution But not all the similitudes, even of social origin, appearing in legal systems (or, better say, juridical activities) of diverse peoples, have Imitation as their cause. Many arise from Logic. Though man is imitative, it is because he is inventive. Though the influence of a flood of examples ceaselessly operates, like the leveling process of the watersheds, whence millions of rivulets, brooks, and rivers, each contributes to what may be called the alluvial deposits of civilization, yet this, I repeat, is because from time to time innovations, great or small — mountains or hills — have risen up. And if man is inventive, it is because he is logical. Logical or inventive — it is all one, at bottom. An invention, a discovery, is but the response to a problem ; and that response consists always in connecting with each other, through the ad- justment of means to end, methods of action formerly isolated and barren ; by connecting with each other, through the no less fertile relation of principle to result, those ideas or perceptions which previously seemed to have nothing in common.^ . . . Now, though there are reasons to think that this work of logic, as it progresses, should end in divergent results, characteristic and artistic, there are also reasons to believe that, in many respects, its effects will inevitably be more or less similar. These similitudes will be of two sorts : some will be merely formal, others substantial. Here is an example of the first sort. ^I. Dareste points out, in passing, an indisputable resemblance between the development of the ^Moslem law and that of the Roman law ; but the main thing is to interpret this correctly. The great Arabic jurists worked on the rather narrow basis of the Koran, as the great Roman jurists did on the no less narrow foundation of the law of the Twelve Tables. The former, like the latter, developed the law by means of doctrinal authority, changing constantly by innovations under the pretext of construction. Hanifat, ]\Ialek, Chefei, and Hanbal in the 700 s and 800 s, " created the INIoslem Law, as Sabinus and Labeo before them had created the Roman 1 This is not the place to develop this thought. But the learned reader- will not fail to supply examples drawn from the history of the sciences and industries. The discovery of Newton, for instance, consisted in viewing two ideas, until then strangers to each other, the fall of terrestrial bodies and the attraction of gravitation of the moon around the earth, as two effects of the same principle. The invention of the locomotive consisted in uniting teleologically two modes of action, until then separated, the steam piston and the movfiment on wheels, etc. 50 INTROPUCTION [§ 3, 1. Law. Rome had had the Sabinians and the Prociilians. Islam had the Hanifites, the INIalekites, the Chefeites and the Han- bahtes, all equally orthodox," but of vision more or less broad. "x\t last this great movement ended with the Arabs as it had at Rome. At a certain moment, production ceased and sterility came." This is very true. But to see correctly the significance of this comparison it is needful to compare it with many others, in the juridical world or even beyond it. The Hebrew Law was developed entirely in the same way. The great rabbis had elaborated the law of Moses, which became little by little the Mishnah and the Talmud ; they founded rival schools, and their work, at last, stopped, having reached a relative perfection. In the same way, in every land which becomes civilized, we see learned grammarians elaborate, refine, expand, and establish the national language, — a sort of Koran fallen from the sky, of which they are the respect- ful and ingenious commentators or falsifiers. ... A language, especially on its grammatical side, is a logical ivhole. So, too, is a religion, when reduced to theology. So, too, a Code. Amidst ages of invasions and disasters, the Corpus Juris reigns yet in Europe. Move remarkable still, the Mishnah — the Corpus Juris of the Jews, elaborated by the great Hebrew jurists — per- sists still, in spite of the dispersion of its people. This inherent force of resistance in every system, and this tendency of everything social to develop into a sj'stem, is a re- semblance which has nothing imaginary about it ; and it is uni- versal and deep-rooted. But what does it signify? Does it mean that there is any magical formula for an evolution through which everything must perforce pass ? By no means. It signifies merely that man is a logical animal, — that his need for system and coordination has periods of excitation followed by periods of calm. We may observe the birth and grow^th of his religious ideas, the logical elaboration of them, their consummation in theologies ; the rise of new problems, and the new eft'orts to solve them. ... So too in man's desires, and the process of their harmonization, the logic of social growth proceeds in the same manner. The human heart is born replete with aspirations as incoherent as its thoughts; to make a world from that chaos, to transform that incoherence into mutual advantage, be it in the breast of the individual, be it consequently in the social group, — that is the problem which confronts the first law-givers, often the same as the makers of their creeds. It was solved by laws regarded as divine, — the law of Moses, of Zoroaster, of j\Ianou, § 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 51 of ]\Iahomet. But, after a certain time, new requirements, new domestic precepts engendered by the inventions of civilization, by contact with foreigners, as in the case of Israel and of Islam, became difficult to harmonize with the established laws. Then would the jurists on the one hand, the casuists on the other, exert themselves to disguise the inconsistencies or to absorb them into some paramount harmony. They are supposed only to expound the ancient law ; but, in reality, they are forced to substitute in part for its commands others no less imperative, prompted by the new requirements. . . . Sir Henry j\Iaine has pointed out the important role of fictions in transforming the law gradually. The authors of these ingenious expedients produce, in the concrete, the same thing as did the author of the law himself in creating it ; Mahomet, for instance, did nothing more than re-cast the ancient customs of the Arabs and adapt them to his epoch. Then there comes a moment when the structure of jurisprudence and of casuistry seems complete. People admire it, they call it sacred, — so long at least as the social state be not reformed. But when this reform takes place, the development by logic retains what is most attractive, always the same at bottom. To be sure, modern legislators, in contrast with the ancient, do not seem to take account of precedents. However, that is but in mere appearance. The power of legisla- tively upsetting everything which in theory belongs to our deputies and senators, is but ostensible ; they are compelled to respect, in a certain measure, the ancient laws, the juridical habits of the people, and also to suggest for their needs, old or new, what should satisfy them conformably to those habits. In fact, their apparent omnipotence is nothing but a willing or enforced obe- dience to those needs, to these commands of their electors. These orders are for them what the commands of ]\Ioses were for the rabbis, or the precepts of the Koran for the Arabian jurisconsults. Oldtime jurisconsults or contemporary legislators equally exhibit such submission to superior commands, which they work out logically in subordination to hierarchical principles, conforming the one to the other. After which, the statutes voted and pro- mulgated are gi^^en effect by our commentators of to-day, pro- fessors, judges, counselors, in the form of judicial decisions or of scientific doctrine, — a mass of things of which their authors never dreamed. After all, then, the similitude of evolution, very vague and altogether formal, between the Moslem Law and the Roman 52 INTRODUCTION [§ 3, 1. Law, as alleged by ]\I. Dareste, is merely a case of resemblance, on a larger and more prolonged scale. And it consists in this, that evolution, in every category of social facts, has always as a starting point a certain number of natural jierceytions or ideas learned, of needs inborn or acquired, upon which operates a general need (both innate and more and more developed) for logical co- ordination ; lohich general need itself has its mci^situdes of agitation and of appeasement, — the latter when it is satisfied for a time by an imposing and monumental work, and the former when the growth of new ideas and desires necessitates the work of remodeling or of reform. . . . IV. Law as a Branch of Sociology Before concluding, I have to insist on the importance, sometimes much ignored, of studying the law as a branch of sociology, if we wish to grasp it in its living and complete reality. It is not, furthermore, a mere branch of that great tree which can be severed with impunity from the trunk, and which does not draw its sap from its location in relation to the others, by reason of multiple resemblances, and of differences not less instructive, which that relationship reveals in their diverse modes of growth. Juridical e^•olution most of all calls for elucidation in this way. Strictly speaking, the development of a religion, of an art, of science (such as geometry), of an industry (such as that of metals or of textile fabrics), may be explained separately. Not so a body of Law ; for the Law, among the other social sciences, has this distinct characteristic of being, like language, not merely an integral part but an integral mirror of social life. . . . That is why so frequently, in the course of this study, I have remarked the similitudes between the march of the law and the march of language in the evolution of humanity. These simili- tudes are the more interesting in that they evidently belong in the category of those not caused by Imitation. To all the analo- gies which I have pointed out in the foregoing, in passing, I could add many. Let us gather some of them, at random, barely enough to give to others a taste of the reaping here, and to furnish a pass- ing illustration of the general truths announced by us. Law and Language, we know, are imitative and follow routine to a leading point. Nothing is evolved therefrom save by the steady and combined play of three forms of imitation : the imita- tion of others, under its two aspects, the copy of a contemporary § 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 53 model ("fashion"), and the copy of an old model ("custom"), and the imitation of itself ("habit"). But that which dominates and gives the tone, is, both in Language and in Law, the influence of custom. When the rush of novelties gathered by fashion, here or there, exceeds a certain degree, always very low, the difficulty of classifying them and placing them logically in a system of theories or of institutions already long established, produces a crisis, a disorder of the law or of the language ; and it must needs be that one or the other either die thereof, or that it expel violently a greater part of those undigested foods, too hastily swallowed. ^Moreover, it has always been impossible to implant and to keep alive in any nation, even the most enslaved, a Language or a Law made entirely of fragments, however logically and artistically collected they may possibly be. Those excellent compositions perished almost at birth, despite the insistence of the amalgamated legislators or grammarians that they should live. Why? Pre- cisely because logic is the supreme thing wanting. For this need of Logic, in Language as in Law, divides asunder those who combat it. And this combat infuses all the life, all the difficulty, all the interest into the elaboration of the law and of language throughout all time. If there was no issue involved but to reconcile with each other the elements of a law or of a language, so as to produce a regular and coherent whole, the task would be very easy. But, comcident with the effort of the grammarians or the jurists (or rather of the entire public), thus conspiring, wittingly or unwittingly, but in- variably, against such logical internal arrangement of a grammar as refines it little by little of its exceptions and incongruities, or of a codification which little by little is improved and systematized, another and primary task is presented to put the grammar and the codes in accord with the society which they should go^'ern, and to perfect this accord constantly. This last accord itself is a logical arrangement, in another sense of the word, — teleological, to speak exactly. Xow, the state of society, if we include m one glance the opposing ideas and claims which there confront each other, is always, in great part, illogical and incoherent. For a body of Law, therefore, as for the structure of a Language, the problem of evolution consists in adapting it to itself as much as possible, tchile also adapting it to a society which never very icell adapts itself to itself. It consists, in other words, in making the logical out of the illogical. It follows that the danger is ever present of sacrificing 54 INTRODUCTION [§ 3, 1. one of these two concurrent and contradictory aspirations. And the grammarians, Hke the jurists, have a pronounced predilection to insist improperly upon the former, while the public, happily, has the contrary tendency. Hence, the two different maladies by which the Law, and Language also, may be affected : namely, either to accord with themselves, but not with the social environ- ment, — like a revolutionary Constitution, or like Volapiik, the most regular of languages ; or to harmonize fully with the social world but not with themselves, — like the confused mass of the English laws, and like most of our European languages. . . . We cannot, of course, more than touch this vast subject. We may remark, in closing, that if we attempt to embrace in but one glance the successive phases of different languages, we perceive nowhere any tendency of these various linguistic evolutions, much as they seem independent, to converge toward one single language or toward one single final state. To an analogous result the study of the various juridical evolutions has led us. All that we see clearly is the tendency to supremacy of one sole language or of a very small group of languages, and of one sole Law, or of a very small group of Laws, and of a language or of a Law^ common to all classes of the society. Now this is the double inevitable con- sequence of the long continued influence of Imitation. The farther we trace back into the past, the more we discover of distinct idioms, and of customs having the force of law ; so that in the beginning we might suppose that there were as many lan- guages and laws as villages.^ But, in proportion as the relations between men multiply, the greater part of these linguistic and juridical creations, so astonishingly multiplied, are impeded or destroyed ; because a small number of them, and not always the best, are indebted to circumstances historical, ethnical, geographi- cal, much more than to their intrinsic superiority, for the privilege of expanding over the globe. On the other hand, and simulta- neously, changes are brought about in languages by borrowing of "noble" words into common speech, of literary words into the ordinary style — acquisitions often ironical, but always imitative. And these changes correspond, in the Law, to those produced by importation {e.g. the rule of primogeniture imported into the plebeian birthright), and by the gradual extension to inferior classes of some laws originally reserved to the superior classes. 1 This is so true that, even for our own epoch, the village, according to M. Arsene Dumont, is the linguistic unit ("Rev. scientif.," 10 Sept. 1S92). § 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 55 Little by little, in that way, is established one language alike for all, and one Law alike for all. 2. CRITICISM OF THE IMITATION THEORY i Unfortunately, it is necessary to confess that the views expressed by M. Tarde are not at all those which we believe to be well founded. Scarcely at any point are we able to join in his conclu- sions. Assuredly, M. Tarde is a man of too much intelligence, and of too keen a mind, but that much may be extracted from his last work (like those w^hich preceded it), and but that this work would be very rich in sound methods of thought, and in profitable themes and reflections, and would advance a variety of fertile ideas. But this is not the book on the evolution of law which the friends of this science w^ould have desired — an inventory of the researches already made, at once friendly and critical, setting forth neither with an easy-going faith, nor with preconceived hostility, the results which seem to be attained, those which appear only probable, and those which are yet in doubt, giving conjecture for conjecture without masking objections, and admitting more frankly the legitimacy of the method and what it has accom- plished. It is, in truth, on the contrary, almost entirely a book of nega- tive controversy, directed as well against the principle of the new studies [on the evolution of law] as well as its applications. It is a denial both of the whole and its parts. Going to the entirety of the principle, M. Tarde rejects the doctrine that one evolution, identical in its chief features, normally is presented under the in- fluence of the same causes, and apart from all imitation, in the juridical institutions of the most diverse peoples. He combats the idea according to which the different groups of mankind, in their social development, follow the same path of development ; which, while it does not yet lead, and may perhaps never lead, to the same social destiny, yet shows the same direction for all ; and according to which those peoples which have proceeded more rapidly in the march of evolution have necessarily passed the stages shown among races of tardier development. Touching the detail of the matter, he denies, for example, in criminal law, that our modern codes have sprung from a system of private vengeance. In the field of family law, he denies the priority of female kinship and the 1 [Bj' Paul Frederic Girard. Translated by Albert Kocourek, from "Melanges de droit Romain (I, Histoire des Sources)," Recueil Sirey, Paris, 1912.] 56 INTRODUCTION [§3, 2. maternal family (which however is not to be confused with the somewhat improper term "matriarchate" — according to the hypoth- esis of a general phase of female authority) to the patriarchal family and masculine relationship, from which, in turn, the modern family arose. In the sphere of immovable property, he rejects the de- velopment of collective proprietorship of the clan and the tribe, leading to collective ow'nership in the family, and then to individ- ual ownership. He opposes also a variety of other things which appear to be clearly established from the bringing together of primi- tive institutions. In this respect, talent apart, and with all deference, this little volume does not differ greatly from those which, thirty to fifty years ago, protested in the name of orthodox spiritualism against the intermixture of natural science in the domain of psychology, or the current accounts of those who to-day combat, with the same zeal, the pretension to the discovery of sociological laws. ]M. Tarde's originality lies in this, that he does not reject these laws, and that he repudiates, as frankly as anyone, the narrow skepticism which sees in social facts only a fortuitous combination of con- flicting contingencies. M. Tarde admits that juridical facts are governed by law, or rather, in chief, by one law" ; and he renounces all other explanations in order to make more room for his ow^n explanation of this law of imitation. It is to this law that he offers a holocaust of all the results which the investigations in comparative law have been obliged to derive from other founda- tions. We claim openly for these researches the right of existence. We are quite ready to admit, that in the growth of law, imita- tion has played a very important part — a part much more impor- tant than is generally believed, if M. Tarde wishes. But it is not allowable on this account to deny all other development, or to draw the history of all other, or nearly all other, changes from a single inventor wdiose discovery then in rapid waves has swelled over the entire globe. It is much more likely that there have been a great many inventors. They have been, w^e believe, count- less, and their successive and similar inventions, greatly multiplied in number and very limited in scope, have been the product of another cause, as it were, the mechanical operation of circumstances. It is seen, even in our own epoch, in astronomy, in physics, and in chemistry, how the same discoveries and the same inventions have been independently made, a few days apart by different scientists ; at the moment when the general state of knowledge made these inventions imminent, or when, as we may say, they were demanded § 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 57 by surrounding conditions. The same multiplicity was all the more necessary to produce juridical inventions in epochs and places widely separated, among those where it must well be conceded, notwithstanding ]M. Tarde, that communication was much more rare and difficult than among the learned of the civilized world of to-day. There, also, the same surrounding circumstances must have urged into being, repeatedly, at divers times and in divers places, the same fundamental juridical inventions ; afterwards developed and transformed by a variety of partially identical in- ventions, under the influence of similar circumstances, following a mechanical operation, corresponding exactly to that which to-day produces the discovery of the same planet or the same industrial improvement by different men strangers to each other. There can be no question there either of imitation, or of laws of imitation. It is, we beheve, even precisely and solely when imitation is not involved, when it is not a factor, and when legal development clearly proceeds without any borrowing, in its independent origi- nality, that we may, in the proper sense, inquire into the laws of legal evolution ; according to which not only certain juridical in- stitutions, but certain forms of such a given institution, appear in each group at a definite period and not at another, after a certain phase of development and before another. i\I. Tarde summarizes nearly all the laws of juridical develop- ment in that of imitation. We believe, on the contrary, that it can scarcely be doubted that there are laws other than that of imitation. The phenomena of imitation, however, cannot be ignored ; they are a part of the aggregate of juridical development. One who wishes to understand this development cannot omit to study what produces it ; how, when by the will of an alien power, or by reason of spontaneous imitation, a foreign legal insti- tution is introduced in the law of a people, the alien element thus incorporated may, as the case may be, either perish, or be gradually eliminated, or lastly, be assimilated by an internal series of changes which develops a new channel of imitation. But the phenomena which constitute the true material of the history of comparative law, those in respect to which the phenomena of imitation have only a subordinate interest, like the detail of a picture, or a con- dition of disease for knowledge of a condition of health, are the facts of normal development which follow free of outside influences. From an observation of these facts as minute and as extended as possible, we may hope to derive at once a series of partial laws, and, perhaps, in time a general formula which will embrace them 58 INTRODUCTION [§ 3, 2. all. Of course, we have not yet attained a general principle which may be here, as in other scientific studies, the crown and conclu- sion of a mass of isolated discoveries. But it may, we think, be regarded as demonstrated, that there are a number of special laws of evolution. Space does not permit a discussion of the details of all the points raised by M. Tarde. We may, however, offer certain general ob- servations. First, it appears to us, that M. Tarde in many connec- tions has claimed too easily to have proved the nonexistence of a determinate chain of evolution where he thinks he can show that it has not operated in this or that particular case. Social laws do not always have the clearness of mathematical laws. Practical appli- cation of these laws may, in being masked or paralyzed by an in- finitude of circumstances, prevent their being discerned. M. Tarde appears, also, to forget in his discussions, that the absence in a given group, of vestiges of a phase long since overshot by civili- zation is a regrettable accident, but natural enough ; and that it does not outweigh all the probative force of other positive vestiges of the same phase found in numerous other societies. Such a fact does not any more hinder a general conclusion, than it would, for example, in linguistics or geology. Finally, we may be permitted to ask, if, for the purpose of a discussion of problems which involve all the observed facts past and present of human society, the mate- rial assembled by ]M. Tarde is not somewhat scanty ? So, with reference to the inductions, from our point of view per- fectly legitimate, drawn from knowledge of primitive societies and from existing customs of peoples less advanced than ourselves, M. Tarde speaks of " a small number of anecdotes, always the same, drawn from various American, African, or Oceanic tribes, which have made the round of the sociological press, and which, for a long time, will continue the operation under various labels." It is, indeed, not necessary to say, and the explanation is sufficiently clear, why always the same decisions are cited in the hand-books of the law, and the same experiments entered in the compendia of physics. In the first place, it is very commendable to invoke the most convincing examples which have already been discovered ; next, it is the height of modesty that the books which are not orig- inal should freely copy one from another. But in resorting to such books, it is not implied that no other materials are in exist- ence. The student would err who supposed that there are no other § 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 59 decisions than those cited in his ]\Ierlin ; and the candidate for the bachelor degree would make a mistake if he thought that no other experiments had ever been made than those entered in his paper. But, holding strictly to the literature of comparative law, M. Tarde, without resorting to the general works on sociology, will be able to find some more anecdotes either in the excellent " Zeitschrift fiir vergleichende Rechtswissenschaft," published since 1878 under the direction of Franz Bernhoft, Georg Cohn, and Josef Kohler ; or again in the numerous studies of all kinds and shapes of Kohler; and again, for example, in the considerable collection of concrete references assembled since some years with great patience by a colleague of M. Tarde — Judge Post of Bremen ; thus, from a geographical poiat of view, in the 700 pages of his " Afrikanische Jurisprudenz," or, from a systematic standpoint, in his " Grundriss der ethnologischen Jurisprudenz." And if M. Tarde speaks in this manner of the researches relating to the existing customs of savage peoples of the present day, we may doubt whether his information is more complete in that which concerns the able inquiries made in our time into the his- tory of the past. There, also, he takes the conclusions of elemen- tary books of second and third hand as the sum of science ; and he is astonished that he finds so little. A passage from the author has it that in the renascence of historical legal studies at first " only Roman law was investigated historically from its sources" ; and then was followed by the Egyptian and Assyrian law, and then again only, it seems, by " similar researches into Indo-European and Semitic antiquities, the Germans, Slavs, Persians, and Celts, as well as the ]\Iussulmans, the Hebrews," etc. This suffices to show a somewhat superficial notion of the magnificent erudition and critical investigation first made in our age in Germanic legal history, and perhaps rather than in Roman law; which movement of research has since spread to Slavic, Hindu, Greek, and Hebrew law, and has extended still more tardily to Egyptian and Assyrian law. The very good book of ]M. Dareste ("Etudes d'histoire du droit"), which is the most solid and the best of those to which he has appealed, points out a whole literature which he appears scrupulously to have avoided. This, we believe, is the great defect of the book, and is the general explanation of the defective solutions in which it results. Being inclined by nature more to abstract reasoning than to sys- tematic observation, ^I. Tarde has treated almost exclusiv.ely, by a process of reasoning, questions which depend entirely on obser- 60 INTRODUCTION [§ 3, 2. vation, and for which personal observation remains more indis- pensable than anywhere else ; because the effort to sum up, and to classify positive facts, is still liable to disregard what has already long since been recorded in numerous collections, as is the case for the greater part of the other sciences of observation. We will give a final example of this, which seems to us to be striking. ]\I. Tarde speaks of the wonderful similarity observed by M. Seignette ("Code musulman par Khalil") between the customs of the pre-Islamitic Arabs and those of the Romans at the time of the Twelve Tables — absolute paternal power, perpetual tutelage of females, the will, inheritance and tutelage of the agnates, patron and client, testamentary tutelage, nexum, pignoris capio, noxal abandonment, retaliation, composition, etc. He finds here, as always, the influence of imitation, and that "if we recall the proximity of Arabia and India where similar customs have pre- vailed . . . there is no difficulty in explaining these resemblances by imitative action." It is easy to understand how one so adept in the doctrine of imitation may heroically support the similarity be- tween the legends of the Zulus and our children's tales, by supposing an importation of these stories by merchants and European sol- diers who on the whole were more occupied with the destruction and spoliation of the natives than with the recital to them of the Ass's Skin and Little Poucet. But this is an affirmation, and not a demonstration. The method of science proceeds otherwise. In order to ascertain if the similarity between the laws of Rome and pre-Islamitic customs is derived or not by imitation from a primitive system of law common to the Romans and the Hindus, a scientific method of inquiry will discover if the same institutions existed among the Hindus as among the Romans, on one hand, and if, on the other hand, they are found among the founders common to the two races, before their separation. Having determined for a certainty that they exist among the Romans, and not among the Hindus ; or, again, that they exist among both Romans and Hindus, but that they developed among them only after the separation, it may not only be supposed, but it will be proved, that the first institutions have arisen independently under the influence of identical causes among the early Arabians and the Romans ; that the second have had the same kind of origin among the Hin- dus and Romans ; and that those facts make very questionable any explanation of imitation for those cases where the impossibility of such a theory cannot be directly shown. There, as in many other places, the error of M. Tarde proceeds § 4.] UNIVERSAL COMPARATIVE LAW .61 from this, that he wishes to treat a science of observation by other methods than those of the sciences of observation. This does not prevent an attentive reading of the book, which is still useful in that, by its very character of opposition, it gives to the students, who in future will pursue these studies, a good motive to test their own ideas. But since, as we think, he has failed to shake seriously any of the propositions of the doctrines which he combats, his theory is very far from bringing a revolution, as some enthusi- asts have too hastily proclaimed.^ Section 4 SCIENXE OF UNIVERSAL COMPARATIVE LAW 2 1. It is recognized, now, that the study of positive law of all peoples, and in all ages, is scientifically possible and necessary. Likewise, it is admitted that an examination of primitive and em- bryonic stages is indispensable for full understanding of later phases of growth ; and that comparison of different ideas is the best method to determine the character and tendencies of legal evolution. There is implanted in the minds of all scholars a belief in the propriety and importance of experiential investigation in all sciences, and especially in that of the law. The only objec- tions which may be urged against this method relate to the intrinsic difficulty of the investigation and the limits assigned to it ; not by virtue of a preconceived idea of dogmatic order of the materials, but on account of the means and efforts which must be employed. A complete and universal study of juridical phenomena, in truth, is a scientific ideal which we are able and ought to seek, but which, for reasons easy to find, can never be fully attained. How many peoples there are recorded which have disappeared leaving only the scantiest traces of their history, or perhaps nothing ! How many documents irreparably injured, or hidden, or indecipherable ! To what extent has the law been observed simply as custom, with- 1 [Mr. Tarde replied to this re\iew in a letter to the "Revue Philoso- phique" (December, 1893, pp. G23-629, and republished in the preface to later editions of his "Transformations du droit," Gth ed. 1909, pp. i- \-iii). Professor Girard rejoined in "Revue Philosophique " (1894, Vol. XIX, pp. 210-212) and republished in his "Melanges de droit Romain," Tome I, pp. 429-432.] 2 [By Giorgio del Vecchio, former professor at the University of Messina, and now professor of Philosopliy of Law at the University of Bologna; translated by Albert Kocourek from the French version of M. Rene Francez ("Extrait de la Revue Critique de Legislation et de Jurisprudence," Paris, 1910).] 62 INTRODUCTION [§ 4. out other sanction, and without written form ! The difficulty of knowing at this time with precision of the legal systems of peoples which did not attain an elementary elaboration of law, either legislatively or scientifically, is manifestly very great, and when we deal with ages far removed, is frequently insurmountable. Especially, knowledge of origins, and of prehistorical develop- ments does not appear to be easy to obtain, except for him who ignores the special conditions of an investigation of this kind, and is disposed to supph% in default of documents and critical proofs, the products of imagination, or dogmatic credulities. Neverthe- less, the difficulties and the compass of the matter, instead of causing a slothful or skeptical abandonment of the subject, ought rather to induce more diligent efforts ; since the infinite richness and variety of the phenomena of nature are a motive of zeal, and not of discouragement to the naturalist who seeks to discover its laws. To-day, notwithstanding considerable progress due to the labors of a few indefatigable scholars, knowledge of universal juridical phenomenology is rather incomplete and imperfect. This, it may incidentally be remarked, is the cause, and partially, also, the effect of the complete absence of this subject in the programs of study. In this state of things, there being a lively and profound belief, more or less clearly defined, of the necessity of this study, it is not astonishing that its want makes itself felt indirectly. Its absence is the cause of disorders and evils which disadvanta- geously affect the system of studies and the economy of thought. That which is understood as sociology, frequently is only a collection of experienced facts which logically ought to appertain to the science of universal comparative law, and, in a larger sense, to juridical science from which these facts are excluded only by virtue of a too narrow conception which it still supports. Those institutions and those phenomena of social life, which, considered from a certain stage of evolution, or under a like, special aspect better known, show themselves unmistakably to be of a juridical nature, are, on the contrary, rejected as beyond the "official" scope of juridical science ; since they appear in a more primitive form, among peoples less civilized, or even in different civiliza- tions. For example, a work on the parental and patrimonial regime of the Papuans or the Bogos, and perhaps even of the Aztecs or the Koreans will have little chance of consideration by the jurists who dislike to look beyond the horizon of the tradi- § 4.1 UNIVERSAL COMPARATIVE LAW 63 tional culture. At the same moment, they easily take refuge in that collection, often chaotic, of facts and conjectures, which con- stitutes what is called sociology, and which in its defective sys- tematization bears precisely the mark of the imperfections of contemporary culture. The truth is that the only sociology having a reason for existence is one which treats the rides of method com- mon to different sciences, from observation of human facts. We shall show here, briefly, what these rules are in connection with the law, and how they are able to accord and harmonize, in a coherent program, as well with the science as with the philosophy of law. 2. We must, first of all, proceed from the principle that all posi- tive law whatsoever, and however it may appear in the order of phenomena, is a natural fact ; that is to say, determined by suf- ficient causes, and connected with all other aspects of reality. . . . It is necessary clearly to understand the relativity of positive law, in order that a phenomenon, and even a general phenomenon, will not be confused with the law or with the criterion of valuation to which, logically, the reality is subordinate. . . , From any such principle it follows at once that no juridical institution is to be regarded as a prototype of others. All without exception ought to be equally examined and analyzed in the historical setting which produced them. For the same reason no institution should be put aside or regarded as unworthy of scientific investigation. All undervaluation in these matters is as unjusti- fiable as all over-preference. Thus, as Post remarks, a feeling of revulsion because a people live without marriage, practice human sacrifices or cannibalism, or burn sorcerers and witches, is without value in the solution of ethnological problems, but rather diverts attention from the search for the causes of these phenomena.^ Who- ever maintains that popular customs and beliefs are devoid of meaning shows that he is not qualified for this study. Against the judgment of Cicero ^ who declared the law of all peoples, strangers to Rome, "poene ridiculum," we may urge the more profound saying of Spinoza ^ — " non ridere, non lugere, neque detestari, sed intelligere." Another consequence of the principle stated is the necessity of not neglecting the origins and the primitive phases of institutions which we do not discover as completely formed and de^'eloped. If it is admitted that in the empirical order of things, everything ' [See Section 2, supra, p. 36.] ^''T>e Orat." 1, 1, c. 44. 3 "Tract. Polit." c. 1, Sec. 4. 64 INTRODUCTION [§ 4. results from a cause, and that nothing happens without sufficient factors to produce it, then we shall be obliged in the study of all juridical institutions to take account of their antecedents. And the further back we go into the knowledge of these antecedents, the better we shall attain a complete notion of the institution. Comparison of the different phases of its growth, of the changing aspects assumed accordmg to circumstances, is necessary for a clear understanding of its present situation. For this purpose, the most valuable information, in fact, is furnished by its original, its rudimentary, and lowest forms of development, which to a superficial observer would appear as of no importance. For this reason it is also necessary to state that each product of evolution, however advanced, sums up all earlier forces. The law of any people in all stages retains the signs and residues of precedent phases of growth, however remote. Juridical rules and beliefs of the ages past survive in some sort in the present ; they are never completely lost. But these elements mixed with others super- vening later, and recast in a new form, frequently escape the observer. . . . A survival, unimportant though it may seem, may throw an unexpected illumination over a mode of life which has disappeared from view. A rare form preserved by unconscious tradition, a custom profoundly rooted in spite of its discord with written law, may permit an entire reconstruction of an age which has passed away. Such a reconstruction is notably rendered possible by the frequent fact that a detail which in a certain phase of culture ap- pears as an anomaly, may be found in vigor in a complete and harmonious system among other peoples of lesser culture. 3. The principle of method above indicated has a fundamental importance. Nevertheless, it is insufficient to constitute a science of juridical phenomena. It establishes the generic condition of an investigation of this sort in so far as it has an empirical character, but not its specific condition in that its object isJ2iridical phenomena as such. From this arises the necessity equally fundamental of determining from a logical standpoint what is to be understood by law, and upon what elements the juridical character of a phe- nomenon depends. . . . This inquiry, of course, in its nature, goes beyond an empirical investigation which as such seeks to assemble special and con- crete juridical facts, and not to discover a logical universal form. . . . Let it suffice to reaffirm that this formal idea is a necessary condition to experience of juridical facts. It is recognized in all § 4.] UNIVERSAL COMPARATIVE LAW 65 phenomena of law but always in a special attitude, with a content variable and logically accidental. On the contrary, it compre- hends and limits in equal measure all possible cases in the juridical sphere, surpassing, therefore, by far, the facts verified in the domain of experience. Recognition of this transcendental condi- tion of juridical experience does not diminish the value of experi- ence itself. Rather, it puts experience in its true light and guaran- tees its authority in its own field. In reality, we are able and ought to borrow from experience as an inexhaustible fountain, knowledge of the content that law has provided in space and time. From what has been just said nothing which credits the study of historical facts in which a juridical character is found, is an ob- struction to going back in turn to the formal idea of which facts are only the applications and illustrations. 4. In agreement with these fundamental criteria, an objective study and comparison of juridical phenomena may be attempted. We may therefore set up an autonomous science which may be called the "science of universal comparative law." But in order thoroughly to apprehend the basis and object of this comparison, it is necessary to return to the principle which dominates its ma- terials — the profound unity of human nature of which the law is a necessary manifestation. We find here also one of the premises of empirical investigation, the results of which however confirm and illustrate this unity, but in reality rest upon it and draw from it its scientific character. Every man bears within himself the principle of law. Every mind possesses the elements with which to elevate itself to its proper empirical position as a personality whence it may har- monize ethically with the personality of others. It is essential not to lose sight of this eternal principle of justice which is firmly anchored in the depths of the human mind, in order that the manifold series of facts which issue from it, and which observation attempts to discover, may be thoroughly understood. Thus, we recognize at once that the psychological aptitude to distinguish in a certain measure the just and the unjust, and to feel and to conceive juridical truth is not the possession of a few men only, but belongs to all persons. Again, law is not an isolated fact which alone is encountered among this people or in that epoch ; but everywhere that men are found, there are discovered traces of an ethical system, and of a law which reflects a common activity of man's spirit. On the other hand, in the same way that the human mind devel- 66 INTRODUCTION [§ 4. ops slowly from the most obscure forms of knowledge to clear ideas, so also the law grows from a phase almost unconscious, and, little by little, attains the stage of reflection. An obscure instinct and a vague intuition of their objects is sufficient to generate among men organizations and institutions which seem to indicate, so complex is their structure, profound and mature thought. They are not, however, less a product of mind and intelligence, although created spontaneously, and, as it were, unconsciously. . . . The unity of the human mind, in which the law has its source, does not, in general, spring solely from the continuity and univer- sality of law. A series of identities and resemblances which are met in the positive law of all peoples is another special proof of this. The prejudice which for a time dominated, especially under the influence of the Historical School according to which each people necessarily has a system of law peculiar to it, which is a part of that people and fits its own conditions, and which as a result would be different among other peoples, compelled a broader study of juridical phenomena to yield. This study has already demon- strated for a certainty that a large part of fundamental juridical principles and institutions is the common heritage of all humanity in all epochs. The modern specialists of comparative law insist upon this proposition ^ because they well understand, without expressly saying it, that this science has its true reason for existence in the substantial unity of the human mind which is revealed in the law. The fact that juridical institutions are subjected to a process of evolution may appear to negative this unity. On the contrary, it provides a new confirmation ; since evolution itself manifests a general attribute of humanity which is realized in an analogous manner among different peoples widely separated in space and time, and having no connection with each other ; where, otherwise, to explain these phenomena, it would be necessary to revert to the hypothesis of a common origin of the races which in many cases is not verified, and where, for the rest, it would be insufficient to justify the analogies observed. The same evolution governs the general expression of the ethico-juridical system and special institutions (such as property, the family, etc.). They pass through a series of determinate stages in a definite order and frequently 1 Post, "Bausteine," i (1880), pp. 14, 54, "Ueb. die Aufgaben einer al- gem. Rechtswiss." (1891), pp. 17-19 ; Kohler, [Introduction, See. 1, of this volume, and] "Ueber die Methode der Reehtsvergleichung " in Griinhut's Z. (1901), p. 274 seq.; Dareste *!' Etudes d'histoire du droit," V serie (2