The Scope of Jurisprudence

Influence of Philological Research.—The immediate in citement for the formation of comparative jurisprudence was given by the discoveries of comparative philology, now chiefly associated with the name of Max Muller, which revealed the profound connection between the different branches of the Indo European languages, and showed that the development of these languages proceeded on lines which might be studied in a strictly scientific manner, on the basis of comparative observation and with the object of tracing the uniformities of the process. Naturally, students of religion, of folklore and of legal institu tions took up the same method and tried to win similar results.

It is interesting to note that one of the leading scholars of the Germanistic revival, Jacob Grimm, a compeer of Savigny in his own line, took up with remarkable success not only the scientific study of German but also that of Germanic mythology and popu lar law. His Rechtsalterthumer are still unrivalled as a collection of data as to the legal lore of Teutonic tribes. Their basis is undoubtedly narrow ; but the method of treatment is already a comparative one. Grimm takes up the different subjects—prop erty, contract, crime, etc.—and examines them in the light of national, provincial and local customs, sometimes noticing ex pressly affinities with Roman and Greek law. It would have been well if more of the work of this school had followed this scholarly model, but the results of the new method were too exciting for that. As if the common elements of French, Spanish and Italian constituted the language Cicero spoke, the newly discovered affinities of the Indo-European languages invited the reconstruction of "Aryan" of which, unlike Latin, there is no record. This perhaps might have passed, but when enthusiasts went on to formulate a code of civil law (with a jus gentium thrown in) for the hypothetical users of an inferential language it was time to call a halt. Such extravagances, however, must not blind us to the importance of the immediate effects of the new methods, the rare stimulus to research and enquiry at once afforded. For Maine and his contemporaries the triumphs of comparative philology were a thing to emulate. "I should, how ever, be making a very idle pretension if I held out a prospect of obtaining by the application of the comparative method of juris prudence any results which in point of interest or trustworthiness are to be placed on a level with those which, for example, have been accomplished in comparative philology" (Maine, Village Communities, 1871, p. 8).

The comparative study of primitive law assumed a wholly different aspect in the works of Sir Henry Maine. His best per sonal preparation for the task was that he had come into contact with living legal customs in India. For him the comparison be tween the legal lore of Rome and that of India did not depend on linguistic roots or on the philological study of the laws of Manu, but was the result of recognizing again and again, in actual modern custom, the rules and institutions of which he had read in Gaius or the Twelve Tables. The sense of historical analogy and evolution had shown itself already in the lectures on Ancient Law, which, after all, were mainly a presentment of Roman legal history mapped out by a man of the world, averse to all pedantry. But what appears as the expression of Maine's

personal aptitude and intelligent reading in Ancient Law gets to be the interpretation of popular legal principles by modern as well as by ancient instances in Village Communities, The Early History of Institutions, Early Law and Custom. This breadth of view seemed startling when the lectures appeared, and the original treatment of the subject was hailed on all sides as a most welcome departure in the study of legal customs and institutions. And yet Maine set very definite boundaries to his comparative surveys. He renounced the chronological limitation confining such inquiries to the domain of antiquaries, but he upheld the ethnographical limitation confining them to laws of the same race.

Thus, notwithstanding all diversities in the treatment of par ticular problems, one leading methodical principle runs through the works of all the above-mentioned exponents of comparative study. It was to proceed on the basis of common origin and on the assumption of a certain common stock of language, religion, material culture and law to start with.

Ethnology and Jurisprudence.

The literary group which started from the discoveries of comparative philology and history was met on the way by what may be called the ethnological school of inquirers. The original impetus was given, in this case, by jurists and historians who took up the study in the field of ancient history, but treated it from the beginning in such a way as to break up the subdivisions of historic races and to direct the inquiry to a state of culture best illustrated by savage customs. The first impulse may be said to have come from J. J. Bachofen (Mutterrecht, 1861, Antiquarische Briefe, 188o; Die Sage von Tanaquil). All the representatives of "Aryan" antiquities were at one in laying stress on the patriarchal and agnatic system of the kindreds in the different "Aryan" nations; even Leist, al though dwelling on the importance of cognatic ties, looks to agnatic relationship for the explanation of military organization and political authority. Now, Bachofen discovered in the very tradition of classical antiquity traces of a fundamentally different state of things, the central conception of which was not patri archal power, but maternity, relationship being traced through mothers, the wife presenting the constant and directing element of the household, while the husband (and perhaps several hus bands) joined her from time to time in more or less inconstant unions. Some such a state of society is described by Herodotus in the case of the Lycians, and something of the same nature pos sibly is noticeable even in later historical times in Sparta (for Herodotus as an anthropologist, cf. J. L. Myres in R. R. Marett's Anthropology and the Classics). Although chiefly drawing his materials from classical literature, Bachofen included in his Antiquarian Letters an interesting study of the marriage customs and systems of relationship of the Malabar Coast in India; they attracted his attention by the contrasts between different layers of legal tradition—the Brahmans living in patriarchal order, while the class next to them, the Nayirs (Nairs), follow rules of matriarchy.