Page:Popular Science Monthly Volume 17.djvu/601

Rh its tenure, but as to its enjoyment, was in the hands—not of individuals, but of corporate households. There were few contracts, and no wills. Men lived according to their customs. They received their property from their fathers, and transmitted it to their heirs. They were protected, or, if need, were avenged, by the help of their kinsmen. There was, in short, neither individual nor state. The clan, or some association founded upon the model of the clan, and its subdivisions, filled the whole of our forefathers' social life."

Now, how far a knowledge of these things, as taught by comparative jurisprudence, must modify our notions of legal history, is self apparent. The great mass of speculation in the department of social science has heretofore been uniformly wrong, simply because it never spontaneously entered the modern mind that society was possible without states, kings, parliaments, and positive laws. These elements of modern social life were combined and recombined in numberless ingenious ways in the endeavor to reconstruct the past, but it was never dreamed that they must be absolutely discarded. An organized state, political sovereignty, and sanctioned laws were regarded as essential prerequisites to social existence; and, until the last generation of thinkers, there was not one who contributed a word to the philosophy of history who did not regard the state as the only possible condition of human society. It is easily seen, consequently, why Locke and Hobbes, Rousseau and Montesquieu, and the rest, were hopelessly wrong in their views concerning the origin of the state and the laws. It needed a great change in method to disclose to us their fundamental error; and now that the comparative method of historical induction is established upon a quasi-scientific basis, we are in a fair way to rectify century-old misconceptions.

Not the least of the beneficial results which are destined to follow upon the growth of a science of comparative jurisprudence is this, that we shall be taught to realize, more fully than ever before, that all of the phenomena of society, politics, religion, ethics, economics, art, are presented simultaneously by society, and constitute a plexus of interacting causes and effects, independent and yet interpenetrating one another, each of which can only be understood by the light of all.

Two other great lessons this science will be the means of teaching to the world. The first is the exact nature of the relation of custom to law; the second the exact relation of custom and law to legislation. It is obvious that, as the state is a comparatively recent formation, there must have been, as in fact there was, a time when men's conduct was not ruled by anything corresponding to what we know as the law of the state; but it did not, therefore, go uncontrolled. The force which then assumed the place as a rule of conduct which law fills among modern peoples was custom. Now, custom is wholly unlike law as defined by the analytical jurists, in these respects, namely, because first it does not imply a command from any political superior,