PROBLEMS OF ROMAN LEGAL HISTORY 317 



intrinsically comparable; and that allowance should be made for 

 possible borrowings. 



Given these limitations, it is not surprising that comparative 

 study of legal institutions for purely scientific purposes has thus far 

 been confined for the most part to the field of early law. There has 

 been greater safety here, because the conditions of social existence 

 are more uniform among barbarous peoples than among civilized 

 nations, and because such peoples are less likely to know and to 

 imitate foreign customs. 



In this part of the field the application of the comparative method 

 to the problems of Roman legal history has already yielded valuable 

 results. The comparative study of early law in general has thrown 

 light into many corners which were hopelessly dark to the later Ro- 

 mans themselves. " Not for all things established by our ancestors," 

 wrote Julian, "can a reason be assigned"; but for quite a number 

 of the things which the later Romans found inexplicable we are now 

 able to assign reasons that are not merely plausible but convincing. 



To the later and more important stages of Roman legal develop- 

 ment to the public law of the later Republic, and to the civil and 

 praetorian law of the later Republic and of the early Empire the 

 comparative method has not been applied, or has been applied 

 sporadically only and with little result. The reason is very simple. 

 The jurists of Continental Europe have rightly felt that the other 

 and more modern legal systems with which they are acquainted are 

 not available for comparison. As regards public law, they have 

 been living under absolute monarchies or under constitutional 

 monarchies in which the crown is still a real force. They have had 

 no personal and vital acquaintance with republican government 

 conducted on a large scale and maintained for a long period no 

 such experience as Englishmen have had in substance for two cen- 

 turies and Americans in form and in substance both for more than 

 a century. As far as popular participation in national government 

 has been introduced in the larger European states, it has been 

 borrowed from England and adapted to Continental conditions. 

 As regards private law, the Continental European jurists have had 

 personal and vital acquaintance with only two systems: the remnants 

 of the old Germanic law a law arrested in its development in the 

 tenth century and the law of the later Roman Empire, which 

 at the close of the Middle Ages they borrowed en bloc, and which 

 they have since been assimilating and modifying. The one Germanic 

 system which has had an unimpeded and continuous development, the 

 one modern system which has an independent history comparable 

 in its duration with that of the Roman law, is to them almost a 

 closed book. On the other hand, the English, who have the data for 

 comparison, have done little serious work in the field of Roman legal 



