Page:Popular Science Monthly Volume 17.djvu/597

Rh those laws and political institutions which originally they all possessed in common, and which might fairly be denominated Aryan law. This method implies the study of law upon both its statical and its progressive sides, and discloses the processes by which it has been developed. The disclosure of the motives and processes of legal development I regard as unquestionably the most valuable of the fruits of comparative jurisprudence, for just behind them lies that subtile lex legum which has eluded the grasp of so many imaginative system builders, but which is eventually destined to be as familiar learning to the scientific jurist as Grimm's law is to the modern philologer.

It will be readily seen, from this description of the comparative method, as particularly applied to the study of legal history and philosophy, that by the term comparative jurisprudence I mean something more than is usually meant by it when used by lawyers and legislators. These latter use the term as meaning a comparison of the legal systems of distinct and highly developed societies, to the end of the facilitation of legislation and the practical improvement of the law—which I should call comparative legislation. It must be admitted that what is here spoken of as comparative jurisprudence covers an area much wider than the field of law, but it does not therefore follow, as Sir Henry Maine is inclined to believe, that it should be called by some other name. Its field is unquestionably much larger than the field of positive law—which law is, in the words of Mr. Amos, "the enforceable general commands of a state," in the words of Mr. Austin, "law set by political superiors to political inferiors"; but it is not larger than the field of law as it was in archaic society. We may admit the claim that the existence of an organized political power, a state, is a condition precedent to the existence of law as understood in a political society like our own, yet there was law before there was political society, and, although it lacked many elements of the modern idea of law, it nevertheless was the original point of departure, and to it we must look for the historical roots of the positive law of to-day. If comparative jurisprudence deals with religions, ceremonials, customs, and politics, it is because it reaches back to a time when these and law were but slightly differentiated, when law had no peculiar accent of its own apart from that of the other institutional manifestations of social life. It can no longer be doubted that the law of evolution holds good, not only of organic processes, but of all super-organic processes as well—of the development of language, art, law, religion, and political institutions, and that in the beginning they were homogeneous and incoherent. So jurisprudence is compelled to regard something more than law simply, if it is to comprehend law. It has for its subject-matter the study of the relation of the fact law to all of the other facts of society, and so it goes back of positive law and seeks its springs and motives in systems like the early Roman and the Hindoo, where rites, liturgies, prayers, moral ordinances, and what we know