with the most remarkable resemblances; even to the point of the smallest details, and among nations without any historical association. It is necessary to make reference to another fact which equally confirms, on last analysis, the principle advanced, and, of which, ordinarily, the generality and importance is not fully recognized. We refer to the ease with which juridical institutions are adopted by peoples other than those among whom they originated. This aptitude reveals itself in the same proportion as the degree of development to which it applies. Thus, it happens that the laws and even the customs of the more developed nations are nearly always understood (directly or indirectly) beyond the limits where they originate; and are applied, frequently, with a great deal more facility and rapidity than one would suppose in places where a different law is already established. In this manner, the law of each people is able to profit from elements elaborated by others by renewing or reënforcing itself through their strength, or by drawing from them partial adaptations according to the circumstances. The importance of this fact which intervenes almost constantly in the vicissitudes of the law, and chiefly in its periods of progress, will be hard to exaggerate. It implies that in essence the force of juridical institutions, in general, exceeds the causes and the contingencies which produce them; for while being always determined by historical conditions their internal logic nevertheless gives them an independent vitality, and renders them fit for new adaptations, and a function infinitely greater than that appearing at the time of their creation. In a word, the same institutions may be considered in an aspect other than that of historical contingence; they may be regarded as expressions or products of the human mind; and, we may say, from an universal point of view, that they are superior to history. It has been observed with justice 1 that the Historical School never offered a sufficient explanation of the reception of Roman law in Germany. It is now clear that this fact could not have been understood by this school precisely because its concept of the historical and national character of law was too narrow. Again, it was because of the narrowness of the path on which this school operated, that it was all the more incapable of acquiring the universal notion of this reception, which as has been stated is encountered among all peoples and in all epochs. Thus Roman law which was received in Germany, on its part received a large number of 1 Bechmann, “Feuerbach und Savigny " (1894), p. 15. elements of Attic and other Mediterranean law. We may also note, by way of further examples, the reception of Hindu law in Burma, of the law of Islam in Africa, of German law among the Slavs and Hungarians, and more recently of French law in many parts of Europe and in America; without discussing the special borrowings, equally very remarkable, in private and public law, as for example, the English parliamentary system which has spread and is spreading among other States. 1 It remains to bring to light a capital fact which to a certain extent sums up the points already made. In the course of the development of law the elements of general human significance✓ prevail over particular and strictly national elements which mark the inferior phases of this development/ Special rules disappear and make way for more comprehensive rules conforming to rational and universal principles In the progressive movement in which juridical institutions of the peoples take on a rational and universal character, they tend to coincide. In other words, there comes about a convergence of special developments which establishes a more extensive coördination and a more profound harmony among the laws of different nations. This tendency is only an aspect of the development of the human spirit; likewise, at the same time, it has a character of spontaneity and necessity; and it does not depend on external circumstances or influences. Nevertheless, an explanation of this tendency is facilitated and its realization is favored in the system of facts by the aptitude already noticed with which juridical ideas are communicated among different peoples — an aptitude which itself presupposes a definite unity of human nature without which it would not be possible. The conjunctures which, in consequence of diverse contingencies, but with increasing frequency, occur among different groups are an excellent means of recognizing that the essence of the human spirit is always identical, and thus of establishing connections which are based, at least in part, on a recognition of this unity of nature. Thus, whether by the internal elaboration which goes on in the bosom of the law of each people, or whether by the borrowings which occur among different peoples, we arrive degree by degree to 1 Cf. Bernhöft, "Ueber Zweck und Mittel der vergleich. Rechtswiss." (Z. f. v. R., 1878), p. 27; Post, "Ueber die Aufgaben einer allg. Rechtswiss." p. 22; Kohler, "Ueber die Methode der Rechtsverg." p. 279. With reference to the different kinds of transmission and imitation, direct or indirect, conscious or unconscious, see Freeman, "Comparative Politics," 2d ed., 1896; Emerico Amari, “Critica di una scienza delle legislazioni comparate" (1857), pp. 53-69; Vadala-Papale, "D' una scienza delle legislazioni comp.' (ext. Circolo Giuridico, Palermo, 1882). a realization of universal juridical criteria sufficient to govern all humanity. In a word, there is established and perfected an ensemble of common principles, a societas humani generis based on laws inherently natural to all persons. That which rationally is a demand a priori is realized in history by a sluggish process operatamidst the most diverse and complicated changes. ing It is precisely the mission of the science of universal comparative law to collect and arrange the phases of this process which reveals the achievement of an end toward which human reason tends. Therefore, it ought itself to be an efficacious instrument for the progressive unification of the law. This science is distinguished from legal history in the narrow sense, and dominates the particulars of the law, just because its object has an universal character. It does not embrace the data of juridical experience as simple events which depend peculiarly on special causes, but makes use of them so far as they represent, in a definite degree, the development of the human spirit in the form of the law. The point of view which is simply historical and chronological is thus left behind. (Every juridical form has the function which belongs to it by reason of the idea which it cloaks, whatsoever may be the epoch or the people where it is presented Such a criterion, no doubt, presupposes historical knowledge, but is itself superior to history. It permits the grouping of the institutions ancient and modern of the peoples of all parts of the world, wheresoever they have realized the same juridical idea. Such an idea shows its human significance precisely in that it appears uniformly among remote peoples who are strangers to each other, in a form determined by their respective developments. In directing its researches in this sense the science of universal comparative law follows and retraces the steps of evolution of that notion of law which is found unified and complete in pure reason. Two methods are possible and in the end lead to the same result: that the human mind produces the law in the system of phenomena, and regards it in itself sub specie æterni; and that it is the same need of justice which, satisfied partially and by degrees in the course of history, is affirmed categorically by conscience as an absolute 'ideal to which the various facts in the empirical order of things ought to adjust themselves. 5. From what has preceded it is easy to draw the conclusion. If the science of universal comparative law is set in motion in the domain of experience, and is supported by knowledge of juridical phenomena, it is none the less subjected to a whole series of philo L sophical premises and constructions without which it would fall of its own weight. While it is, and ought to be, an empirical science, yet it marks the limits of the reconcilement of the science ▾ and philosophy of law. The science of law discovers in the philosophy of law its principles and its complement; just as, in its turn, the philosophy of law may and should profit for the application and verification of its criteria, by that which science has brought to light. . .\. PART I LAW AND THE STATE CHAPTER I FORMS OF SOCIAL ORGANIZATION By J. W. POWELL CHAPTER II EVOLUTION OF THE STATE BY JOSEF KOHLER CHAPTER III OMNIPOTENCE OF THE ANCIENT STATE BY FUSTEL DE COULANGES CHAPTER IV CHIEFTAINRY AND KINGSHIP SECTION 1. CULTURAL IMPORTANCE OF CHIEFTAINRY BY JOSEF KOHLER SECTION 2. AUTHORITY OF THE KING BY FUSTEL DE COULANGES CHAPTER V RELIGION AND LAW SECTION 1. RELIGIOUS ORIGIN OF ANCIENT LAW BY FUSTEL DE COULANGES SECTION 2. RELIGIOUS ELEMENT IN HINDU LAW BY HENRY S. MAINE SECTION 3. TABOO AS A PRIMITIVE SUBSTITUTE FOR LAW BY JOSEF KOHLER |