The Scope of Jurisprudence

The collection of ethnological parallels for the case of sociology and comparative jurisprudence has proceeded in a most fruitful manner, and it has now become all the richer for the valuable con tributions of archaeology. The spade has revealed traces of cul tures unknown to history, and for the most part lacking all written record. The study of social origins has thus taken on an entirely fresh aspect and though it has only postponed the longer the solution of the big questions comparative jurisprudence had hoped to solve, it has added enormously to the fascination of the sub ject. The comparison, for example, of the condition of life of the simpler peoples and the products of prehistoric cultures has proved most suggestive; few who have read such a work as Sollas' Ancient Hunters can have failed to realize this. (See also Carveth Read, The Origin of Man; G. G. MacCurdy, Human Origins; Burkitt's Prehistory [for the Old Stone Age] ; V. Gordon Childe's Dawn of History [for the New]).

Assistance from Psychology.

Ethnological studies have to look for guidance to psychology, especially to the psychology of emotional life and of character. Although these branches of psychology have been less investigated than the intellectual proc esses, they afford material help to the ethnologist and comparative jurist. Steinmetz made an attempt to utilize a psychological analysis of the feelings of revenge in his Origin of Punishment. Wundt, too, might be mentioned in this connection, but the wholly new impulse given to the study of psychological questions by Freud and his followers has left all such works far behind; his Totem and Taboo has already been referred to. It is much too early yet to estimate the results of a movement of so far reaching a character, but the work of an investigator like W. H. Rivers, at once field anthropologist, physician and psychologist, may be men tioned as among the first fruits of the newer methods. Certainly in the whole of the vast field there is no branch where patient research will so richly reward the investigator. For the literature John Rickman's Index Psycho-Analyticus, 1893-1926, a model bibliography, is here invaluable.

Review of Method.

It is desirable, in conclusion, to review the field and to formulate the chief principles of method. It is evident, to begin with, that a scientific comparison of facts must be directed towards two aims—towards establishing and explain ing similarity, and towards enumerating and explaining differ ences. As a matter of fact the same material may be studied from both points of view, though logically these are two distinct proc esses.

Cause and Effect.—At this initial stage we have already to meet a difficulty and guard against a misconception ; we have, namely, to reckon with the plurality of causes, and are debarred from assuming that wherever similar phenomena are forthcoming they are always produced by identical causes. Death may be produced

by various agents—by sickness, by poison, by a blow. The habit of wearing mourning upon the death of a relation is a widespread habit, and yet it is not always to be ascribed to real or supposed grief and the wish to express it outwardly : savage people are known to go into mourning in order to conceal themselves from the terrible spirit of the dead which would recognize them in their everyday costume (Frazer's Golden Bough iii. 31 and General Index). This is certainly a momentous difficulty at the start, but it can be greatly reduced and guarded against in actual investiga tion. In the example taken we are led to suppose different origin because we are informed as to the motives of the external cere mony, and thus we are taught to look not only to bare facts, but to the psychological environment in which they appear. And it is evident that the greater the complexity of observed phenomena, the more they are made up of different elements welded into one sum, the less probability there is that we have to do with conse quences derived from different causes. The recurrence of group marriage in Australia and among the Red Indians of North America can in no way be explained by the working of entirely different agencies.

Borrowing.—The easiest way of explaining a similarity is by attributing it to a direct loan. The process of reception, of the borrowing of one people from another, plays a notable part in the history of institutions and ideas. The Japanese have in our days engrafted many European institutions on their perfectly distinct civilization; the Romans absorbed an enormous amount of Greek and Oriental law in their famous jurisprudence. A check upon explanation by direct loan will, of course, lie in the fact that two societies may be entirely disconnected, so that it comes to be very improbable that one drew its laws from the other. Although migrations of words, legends, beliefs, charms, have been shown by Theodor Benfey and his school to range over much wider areas than might be supposed, still, in the case of law, in so far as it has to regulate material conditions, the limits have perhaps to be drawn rather narrowly. In any case we shall not look to India in order to explain the burning of widows among the negroes of Africa; suttee may be the example of this custom which happens to be most familiar to us, but it is certainly not the only root of it on the surface of the earth.