SCIENCE OF COMPARATIVE JURISPRUDENCE. 583 



its tenure, but as to its enjoyment, was in the hands not of indi- 

 viduals, 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 kins- 

 men. There was, in short, neither individual nor state. The clan, or 

 some association founded upon the model of the clan, and its subdi- 

 visions, filled the whole of our forefathers' social life." 



Now, how far a knowledge of these things, as taught by compara- 

 tive 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 es- 

 sential prerequisites to social existence ; and, until the last generation 

 of thinkers, there was not one who contributed a word to the philoso- 

 phy of history who did not regard the state as the only possible con- 

 dition 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 fundamen- 

 tal error ; and now that the comparative method of historical induction 

 is established upon a ^wcm-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 un- 

 like law as defined by the analytical jurists, in these respects, namely, 

 because first it does not imply a command from any political superior, 



