584 THE POPULAR SCIENCE MONTHLY. 



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 re- 

 quirements. 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 com- 

 parative jurisprudence is, as I have said, the knowledge of the true 

 relations of custom and law to legislation. Law is the statical, legis- 

 lation 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 le- 

 gislators, will learn from comparative jurisprudence the lex legum of 

 which I have spoken ; will know the veneration due to those institu- 

 tions and laws which are the surest exponents of national genius, 

 while they obey implicitly the spirit of progress. Thus they will re- 

 gard 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 his- 

 tory, 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 alche- 

 mists 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 pro- 

 gression 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 individual- 



