Page:Popular Science Monthly Volume 17.djvu/602

584 and because it is enforced by public opinion rather than by a sovereign political power. While it is thus essentially unlike positive law, it nevertheless "furnishes both the motive and the material for law," and eventually becomes law when the state comes into existence and supplements public opinion with an authoritative sanction. Keller's statement of this is not only so happy, but so perfectly accordant with the fact, as to demand remembrance. "Legal notions," says he. "commence by being instinctively observed in the relations of life, and act upon those relations as a natural force; exactly as is the-case in regard to language and manners. But afterward organized human society draws them within the sphere of its conscience and of its freedom of action, and by its creative power gives them a positive form and a determined efficacity." Custom, then, differs from law mainly in the matter of form and sanction, not necessarily in its requirements. The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.

The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. The true jurists, the true legislators, will learn from comparative jurisprudence the lex legum of which I have spoken; will know the veneration due to those institutions and laws which are the surest exponents of national genius, while they obey implicitly the spirit of progress. Thus they will regard it as a duty to permit no legislation which is not in accord with the genius of the nation, or which would force the law to a hurried or abnormal growth.

And as comparative jurisprudence has borrowed from culture history, so will it pay back its debt to the science of social organization, and demonstrate the eternal absurdity of such schemes as those of Saint-Simon, Fourier, Proudhon, and Louis Blanc; schemes which are not only retrogressive but which contain within themselves a subtile poison hostile to the essential principles of all society. A profound comparative jurisprudence will give the death-blow to "those alchemists of thought," to use the words of Wolowski, "who imagine that society may be made to undergo a transformation between the rising and the setting of the sun."

The great movement of society has been a slow and painful progression from clan society, governed by the law of status, to political society, based upon the principle of individualism; from a society in which individual self-government was unknown, to one which first organized a single central governing power, and which has ever since been limiting that power in favor of the largest practicable