5 8o THE POPULAR SCIENCE MONTHLY. 



tively 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 juris- 

 prudence requires a knowledge not only, as Ahrens reminds us, of "the 

 group of conditions necessary for the physical and spiritual develop- 

 ment 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 ma- 

 terially from those of our civilized states, it is mainly because of dif- 

 ference in conditions and methods of thought. The introduction of 

 the history of manners and institutions into general history accom- 

 plished 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 genera- 

 tions 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 cus- 

 tomary, 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 idtimate 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 modifica- 

 tions 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 ac- 



