THE EVOLUTION OF SOCIETY 



theory is merely an illegitimate attempt to ex- 

 plain an ancient phenomenon by causes which 

 have had only a modern existence.^ The mem- 

 ber of a primitive tribal community had no con- 

 ception of contract ; what he was born to do 

 belonged to his status ; and that he must do. 

 The prevalence of this state of things in the 

 empires of the East is chief among many con- 

 verging proofs that those nations are nothing 

 but immense tribes, or aggregates of the first 

 order. 



With the rise of higher aggregates, such as 

 states, civic or imperial, this sinking of the 

 individual in the corporate existence still for 

 some time continued. The rights and duties 

 of the individual were still unrecognized, save 

 in so far as they followed from the status in 

 which he happened to be placed. In republican 

 Rome, and in the Hellenic communities, the 

 welfare of the citizen was universally postponed 

 to the welfare of the state. But circumstances 

 too complicated to be here detailed, of which 

 the chief symptom was the increasing importance 

 assigned by Roman jurisprudence to contracts, 

 resulted, at an advanced period of the empire, 

 in the more or less complete recognition of in- 



1 See the discussion of the doctrine in Austin, Province of 

 Jurisprudence y pp. 331—371 ; Kant, Rechtslehref Th. ii. 

 Abschn. i. ; Stahl, Philosophie des RechtSy ii. 142 ; Maine, 

 Ancient Law, chap, ivo 



325 



