The Scope of Jurisprudence

But, of course, the utmost use was made of ethnological evi dence by writers who cut themselves entirely free from the special study of classical or European antiquities. The most characteristic representative of these newer methods of extensive comparison was undoubtedly A. H. Post (1839-95)—the author of many works, in which he ranges over the whole domain of mankind—Hovas, Zulus, Maoris, Tunguses, alternating in a kaleidoscopic fashion with Hindus, Teutons, Jews, Egyptians. The order of his compositions is systematic, not chronological or even ethnographical in the sense of grouping kindred races together. He takes up the different subdivisions of law and traces them through all the various tribes which present any data in regard to them. What he sought was not common origin or a common stock of ideas, but recourse to similar expedients in similar situations; and it is one of the most striking results of ethnology that it can show how peoples entirely cut off from one another and even placed in very different planes of develop ment can resort to analogous solutions in analogous emergencies. Is not the custom of the so-called Couvade—the pretended con finement of the husband when a child is born to his wife—a most quaint and seemingly recondite ceremony? Yet we find it practised in the same way by Basques, Californian Indians and some Siberian tribes. They have surely not borrowed from each other, nor have they kept the ceremony as a remnant of the time when they formed one race (see Frazer, Totemism and Exogamy, iv. 244, de Jong, Couvade and Reik, Probleme der Religions psychologie). Again, an inscription from the Cretan town of Gortyn, published in the American Journal of Archaeology (2nd series, vol. i., 1897) by Halbherr, tells us that the weapons of a warrior, the wool of a woman, the plough of a peasant, could not be taken from them as pledges. We find a similar idea in the prohibition to take from a knight his weapons, from a villein his plough, in payment of fines, which obtained in mediaeval England and was actually inserted in Magna Carta. The legal conception of pledge has been carefully worked out on a broad basis of evolutionary comparison by J. H. Wigmore (The Pledge Idea, in Primitive and Ancient Legal Institutions, Boston, 1915). Here also the similarity extends to details, and is cer tainly not derived from direct borrowing or common origin but from analogies of situations translating themselves into analogies of legal thought. It may be said in a sense that for the ethno logical school the less relationship there is between the compared groups the more instructive the comparison turns out to be.

Criticism of Ethnological Theory.

Ethnologists of Post's school have not had it entirely their own way, however. Not only did their natural opponents, the philologists, historians and jurists, reproach them with lack of critical discrimination, with a tendency to throw the most disparate elements into the same pot. In their own ranks a number of conscientious and scien tifically trained investigators protested against the manner in which the most intricate problems had been treated, and sought to evolve more definite methodical rules. A very interesting de parture was attempted by Dargun in his studies on the origin and development of property and his treatise on mother-right and marriage by capture. His lead was followed by R. Hilde brand in the monograph on law and custom and subsequently by L. T. Hobhouse, whose series of studies Morals in Evolution, Mind in Evolution and the Material Culture of the Simpler Peoples are now the recognized works on the subject.

The principal idea of these inquirers may be stated as follows. We must utilize ethnological as well as historical materials from the whole world, but it is no use doing this indiscriminately. Fruitful comparisons may be instituted mainly in the case of tribes on the same level in their general culture and especially their economic pursuits. Hunting tribes must be primarily corn

pared with other hunters, fishers with fishers, pastoral nations with pastoral nations, agriculturists with agriculturists; nations in transitional stages from one type of culture to the other have to be grouped and examined by themselves. The result would be to establish certain parallel lines in the development of institu tions and customs. Another line of criticism was opened up from the side of exact sociological study. Its exponent is Stein metz, who represents with Wilken the Dutch group of investi gators of social phenomena. He takes up a standpoint which severs him entirely from the linguistic and historic school. In a discourse on the Meaning of Sociology (p. o) he says : "One who judges of the social state of the Hindus by the book of Manu takes the ideal notions of one portion of the people for the actual conditions of all its parts." In his sense jurisprudence is a part of ethnology and of the comparative history of culture.

The necessity of employing more stringent standards of criticism and more exact methods is now recognized, and it is characteristic that the late Joseph Kohler of Berlin, principal editor of the Zeitschrift fiir vergleichende Rechtswissenschaft, often gives expression to this view. Beginning with studies of procedure and private law in the provinces of Germany where the French law of the Code Napoleon was still applied, he has thrown his whole energy into monographic surveys and investi gations in all the departments of historical and ethnological juris prudence. The code of Hammurabi, the legal customs of the different tribes and provinces of India, the materials supplied by investigators of Australian and American tribes, the history of legal customs of the Mohammedans, and numberless other points of ethnological research, have been treated by him in articles in his Zeitschrift and in other publications. Comprehensive attempts have also been made by him at a synthetic treatment of certain sides of the law—like the law of debt in his Shakespeare vor dem Forum der Jurisprudenz (1883) or his Primitive History of Mar riage. Undoubtedly we have not to deal in this case with mere accumulation of material or with remarks on casual analogies. And yet the importance of these works consists mainly in their extensive range of observation. See also his Die Anfiinge des Rechts und das Recht der primitiven Volker and for a valuable discussion of Kohler's work, R. Pound's Interpretations of Legal History (1923) and Jurisprudence in Barnes' History and Pros pects of the Social Sciences (1925). Now in Kohler's work and that of some of his compeers and followers, J. E. Hitzig, Hellwig, Max Huber, R. Dareste, more exact forms and means of inquiry are employed and the results testify to a distinct heightening of the scientific standard in comparative jurisprudence. Especially conspicuous in this respect are three tendencies : (a) the growing disinclination to accept superficial analysis between phenomena belonging to widely different spheres of culture as necessarily pro duced by identical causes (e.g., Darinsky's review of Kovalevsky's assumptions as to group marriage among the Caucasian tribes, Z. fur vgl. Rw. xiv. 151 seq., or Boas and Goldenweiser in their treatment of Totemism) ; (b) the selection of definite historical or ethnological territories for monographic inquiries, in the course of which arrangements observed elsewhere are treated as sug gestive material for supplying gaps and starting possible explana tions : Kohler's own contributions have been mainly of this kind; (c) the treatment of selected subjects by an intensive legal analysis, bringing out the principles underlying one or the other rule, its possible differentiation, the means of its application in practice, etc. : Hellwig's monograph on the right of sanctuary in savage communities (Das Asylrecht der Naturvolker) may be named in illustration of this analytical tendency.