The Scope of Jurisprudence

The Beginnings of the Study.—The idea that the legal enact ments and customs of different countries should be compared for the purpose of deducing general principles from them is as old as political science itself. It was realized with special vividness in epochs when material could be gathered from different sources and in various forms. The wealth of varieties and the recurrence of certain leading forms led to comparison and to generalizations based on comparison; Aristotle, who lived at the close of a period marked by the growth of free Greek cities, summarized, as it were, their political experience in his Constitutions and Politics. An other great attempt at comparative observation was made at the close of the pre-revolutionary period of modern Europe. Montes quieu took stock of the analogies and contrasts of law in the commonwealths of his time and tried to show to what extent par ticular enactments and rules were dependent cn certain general currents in the life of societies—on forms of government, on moral conditions corresponding to these, and ultimately on the geographical facts with which various nationalities and states have to reckon in their development.

It is perhaps just worthy of note, in view of the importance folklore and folk customs were to assume, that Blackstone in his comparisons was not averse to instances taken from these sources. Thus he would explain the peculiar custom known as Borough English (q.v.), under which the youngest instead of the eldest son inherits, by a reference to "the practice of the Tartars among whom, according to Father Duhalde, this custom of descent also prevails." (Blackstone's Commentaries, Bk. II, Cap. 6.) These were, however, only slight beginnings. It was reserved for the 19th century to come forward with connected and far reaching investigations in this field as in many others, compara tive jurisprudence, as here understood, dates from the second half of the century.

19th Century Investigators.

There were many reasons for such a departure. The 59th century was an eminently historical and an eminently scientific age : in the domain of history it may be said that it opened an entirely new vista. Before that time history was conceived as a narrative of memorable events, more or less skilful, more or less sensational, but appealing primarily to the literary sense of the reader; in the 19th century it became an encyclopaedia of reasoned knowledge, a means of under standing social life by observing its phenomena in the past. The historic bent of mind of 19th century thinkers was to a great ex tent the result of heightened political and cultural self-conscious ness. It was the reflection in the world of letters of the tre

mendous upheaval in the states of Europe and America which took place from the close of the 18th century onwards. As one of the greatest leaders of the movement, Niebuhr, pointed out, the fact of being a witness of such struggles and catastrophes as the American Revolution, the French Revolution, the Napoleonic em pire and the national reaction against it, taught every one to ap preciate the importance of historical factors, to measure the force not only of logical argument and moral impulse, but also of instinctive habits and traditional customs. It is not a matter of chance that the historical school of jurisprudence, Savigny's doctrine of the organic growth of law, was formed and matured while Europe collected its forces after the most violent revolu tionary crisis it had ever experienced, and in most intimate con nection with the romantic movement, a movement animated by enthusiastic belief in the historical, traditional life of social groups as opposed to the intellectual conceptions of individualistic radicalism.

On the other hand, the 19th century was a scientific age and especially an age of biological science. Former periods—the 16th and 17th centuries especially—had bequeathed to it high stand ards of scientific investigation and a conception of the world as ruled by laws and not by capricious interference. But these scien tific views had been chiefly applied in the domain of mathematics, astronomy and physics ; and though great discoveries had been made in physiology and other branches of biology, the achieve ments of 19th century students in this respect far surpassed those of the preceding period. The doctrine of transformation which came to occupy the central place in scientific thought was emi nently fitted to co-ordinate and suggest investigations of social facts. Though much is expressed in the one name of Darwin, it is perhaps even more significant as a symbol of the tendency of a great epoch, and to this tendency we are indebted for the rise of anthropology and of sociology, of the scientific study of man and of the scientific study of society. Of course it must not be forgotten that the scope of the subject has been immensely widened by growth of knowledge with regard to savage and half civilized nations. Ethnography and ethnology have come into the field with a wealth of material and it is with their help that the far-reaching generalizations of modern inquirers as to man and society have been achieved.