Page:Popular Science Monthly Volume 17.djvu/598

580 as civil laws, appear to be mingled in mere senseless confusion. If the sphere of comparative jurisprudence is thus rendered larger than that of any of the other comparative sciences, it is only because law is the one social fact in which all others eventually lose themselves, and those others have to be known before law can be known. So jurisprudence requires a knowledge not only, as Ahrens reminds us, of "the group of conditions necessary for the physical and spiritual development of man so far as these conditions are dependent on human will," but of physical and spiritual conditions which predetermine law, and to which man has been no voluntary party.

In seeking the causes of ultimate social phenomena, we must always look to the history of the human mind, and its conditions antecedent to those phenomena. The most archaic and I mean archaic—in point of structure rather than in point of time—as well as the most modern social facts grow out of contemporaneous habits of thought. If the institutions of the earlier time or of the less civilized people differ materially from those of our civilized states, it is mainly because of difference in conditions and methods of thought. The introduction of the history of manners and institutions into general history accomplished a great revolution in methods of historical inquiry, for it laid open the hidden springs of national strength or weakness. It was Montesquieu's good fortune to be the first to successfully demonstrate this, but later on Jouffroy saw farther back along the line of cause and effect and clearly pointed out, what Mr. Herbert Spencer has since demonstrated, namely, that the chief agent in social evolution is belief.

It is not enough, then, for the student of comparative jurisprudence to know that archaic society presents startlingly vivid contrasts to the society of our day; to know that that political society which generations of inquirers have regarded as primordial is of recent growth; that time was when there was no state, no contractual, testamentary, or proprietary right in the individual—when the whole law, as yet customary, was summed up in status and kinship. If we are to account for these things, we must account for the state of society in which they existed; and, although such inquiry is not strictly or in any sense exclusively juridical, it is nevertheless prerequisite to a thorough and trustworthy comparative jurisprudence.

In proof of the last proposition, let us trace some of the steps that have been taken in the endeavor to find the ultimate reason of ancient law. Maine first followed back laws as far as the patriarchal family, which he justly calls "the type of archaic society in all the modifications which it is capable of assuming." But he makes no endeavor to account for the family, except by reference to the power of the father. He sets it down as a primordial and inexplicable social fact. He admits that he can not regard a disinclination to accept it as such as altogether unnatural, and yet he avows that he finds nothing in the superficial passions, habits, or tendencies of thought which at all sufficiently