SCIENCE OF COMPARATIVE JURISPRUDENCE. 579 



cision 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 de- 

 velopment 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 phi- 

 losophy, 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 sys- 

 tems of distinct and highly developed societies, to the end of the fa- 

 cilitation 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 ad- 

 mit 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 po- 

 litical society like our own, yet there was law before there was politi- 

 cal 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 polities, 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 pro- 

 cesses 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 sub- 

 ject-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 Ave know distinc- 



