316 HISTORY OF ROMAN LAW 



law now has the instinctive feeling that a new interpretation is 

 probably a very doubtful interpretation. 



The usefulness and the limitations of the comparative method of 

 studying legal history perhaps need more accurate definition than 

 they have yet received. The assumption on which comparative 

 jurisprudence is based is the essential identity of human nature 

 everywhere. The inference is that social developments among all 

 peoples would be identical if all had reached the same stage of de- 

 velopment and were living under identical conditions. In this last 

 qualification we have the first and most important limitation upon 

 the comparative method. Conditions are never identical: they are 

 at most broadly similar. Accordingly, the working hypothesis on 

 which comparative jurisprudence proceeds is that peoples in the 

 same general stage of social development are likely to approach 

 social problems from similar starting-points and to attempt their 

 solution on similar lines. The inference is that a fully known develop- 

 ment in one nation may help us to interpret a partly known develop- 

 ment in another nation. Proceeding with proper caution, we may 

 even fill gaps in the historical record of one system by examining the 

 intermediate links in a similar chain of development in another 

 system. Such reconstructions, it is needless to say, will seldom be 

 indisputable, but they will be more nearly correct than the products 

 of the historical imagination. 



Another limitation upon the comparative method, as an agency 

 in historical reconstruction, is found in the fact that different legal 

 systems do not develop in absolute isolation. The history of human 

 law, as of all civilization, is largely a history of borrowings. I think, 

 however, that this limitation is fully appreciated by students, and 

 that there is at the present time little danger that it will be disre- 

 garded. The tendency of historical jurisprudence now, as in the past, 

 is rather to exaggerate than to overlook the borrowed elements in 

 each legal development. Because the Romans had certain institu- 

 tions which were not primitive and which resembled Greek institu- 

 tions, and because similar institutions existed at a still earlier date 

 in Egypt and in Babylon, there has been an over-readiness among 

 students to assume, without sufficient evidence, a series of imitations 

 and an unbroken chain of derivation. Reasoning of this sort has 

 attributed to Roman sources not a few English institutions which on 

 closer investigation appear to be independent products, as truly 

 English as they were truly Roman, or, to put it more accurately, 

 neither English nor Roman but human. Their similarity is due 

 to the similar working of the legal mind under analogous con- 

 ditions. 



It must be granted, however, that the comparative method is to 

 be used with caution; that the movements compared should be 



