There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law may exist in the English system has come in, whether by conscious adaptation or otherwise, ab extra; it is not of the essence of the system, nor does it form a large portion of the system. And, while English law is thus historically independent of Roman law, it is in all respects worthy of being associated with it on its own merits. Its originality, or, if the phrase be preferred, its peculiarity, is not more remarkable than the intellectual qualities which have gone to its formation—the ingenuity, the rigid logic, the reasonableness, of the generations of lawyers and judges who have built it up. This may seem extravagant praise for a legal system, the faults of which are and always have been matter of daily complaint, but it would be endorsed by all unprejudiced students. What men complain of is the practical hardship and inconvenience of some rule or process of law. They know, for example, that the law of real property is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real property, which rests to this day on ideas that have been buried for centuries, has nevertheless the qualities we have named. So too with the law of procedure as it existed under the “science” of special pleading. The greatest practical law reformer, and the severest critic of existing systems that has ever appeared in any age or country, Jeremy Bentham, has admitted this: “Confused, indeterminate, inadequate, ill-adapted, and inconsistent as to a vast extent the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision, yet in the character of a repository of such cases it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political states, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement—in a word, all points taken together, in constructiveness—to that which may be seen to be afforded by the collection of English reports of adjudged cases” (Bentham’s Works, iv. 460). On the other hand, the fortunes of English jurisprudence are not unworthy of comparison even with the catholic position of Roman law. In the United States of America, in India, and in the vast Colonial Empire, the common law of England constitutes most of the legal system in actual use, or is gradually being superimposed upon it. It would hardly be too much to say that English law of indigenous growth, and Roman law, between them govern the legal relations of the whole civilized world. Nor has the influence of the former on the intellectual habits and the ideas of men been much if at all inferior. Those who set any store by the analytical jurisprudence of the school of Austin will be glad to acknowledge that it is pure outcome of English law. Sir Henry Maine associated its rise with the activity of modern legislatures, which is of course a characteristic of the societies in which English laws prevail. And it would not be difficult to show that the germs of Austin’s principles are to be found in legal writers who never dreamed of analysing a law. It is certainly remarkable, at all events, that the acceptance of Austin’s system is as yet confined strictly to the domain of English law. Maine found no trace of its being even known to the jurists of the Continent, and it would appear that it has been equally without influence in Scotland, which, like the continent of Europe, is essentially Roman in the fundamental elements of its jurisprudence.
The substance of the above article is repeated from Professor E. Robertson’s (Lord Lochee’s) article “Law,” in the 9th ed. of this work.
Among numerous English textbooks, those specially worth mention are: T. E. Holland, The Elements of Jurisprudence (1880; 10th ed., 1906); J. Austin, Lectures on Jurisprudence (4th ed., 1873); W. Jethro Brown, The Austinian Theory of Law (1906); Sir F. Pollock, A First Book on Jurisprudence (1896; 2nd ed., 1904).
[1] This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all.
[2] In English speech another ambiguity is happily wanting which in many languages besets the phrase expressing “a right.” The Latin “jus,” the German “Recht,” the Italian “diritto,” and the French “droit” express, not only a right, but also law in the abstract. To indicate the distinction between “law” and “a right” the Germans are therefore obliged to resort to such phrases as “objectives” and “subjectives Recht,” meaning by the former law in the abstract, and by the latter a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman law between the “jus quod ad res” and the “jus quod ad personas attinet,” devotes the first two volumes of his Commentaries to the “Rights of Persons and the Rights of Things.” See Holland’s Elements of Jurisprudence, 10th ed., 78 seq.
JURISPRUDENCE, COMPARATIVE. The object of this article is to give a general survey of the study of the evolution of law. It is not concerned with analytical jurisprudence as a theory of legal thought, or an encyclopaedic introduction to legal teaching. Jurisprudence in such a philosophic or pedagogical sense has certainly to reckon with the methods and results of a comparative study of law, but its aims are distinct from those of the latter: it deals with more general problems. On the other hand, the comparative study of law may itself be treated in two different ways: it may be directed to a comparison of existing systems of legislation and law, with a view to tracing analogies and contrasts in the treatment of practical problems and taking note of expedients and of possible solutions. Or else it may aim at discovering the principles regulating the development of legal systems, with a view to explain the origin of institutions and to study the conditions of their life. In the first sense, comparative jurisprudence resolves itself into a study of home and foreign law (cf. Hofmann in the Zeitschrift für das private und öffentliche Recht der Gegenwart, 1878). In the second sense, comparative jurisprudence is one of the aspects of so-called sociology, being the study of social evolution in the special domain of law. From this point of view it is, in substance, immaterial whether the legal phenomena subjected to investigation are ancient or modern, are drawn from civilized or from primitive communities. The fact that they are being observed and explained as features of social evolution characterizes the inquiry and forms the distinctive attribute separating these studies from kindred subjects. It is only natural, however, that early periods and primitive conditions have attracted investigators in this field more than recent developments. The interest of students seems to have stood in inverse ratio to the chronological vicinity of the facts under consideration—the farther from the observer, the more suggestive and worthy of attention the facts were found to be. This peculiarity is easily explained if we take into account the tendency of all evolutionary investigations to obtain a view of origins in order to follow up the threads of development from their initial starting-point. Besides, it has been urged over and over again that the simpler phenomena of ancient and primitive society afford more convenient material for generalizations as to legal evolution than the extremely complex legal institutions of civilized nations. But there is no determined line of division between ancient and modern comparative jurisprudence in so far as both are aiming at the study of legal development. The law of Islam or, for that matter, the German civil code, may be taken up as a subject of study quite as much as the code of Hammurabi or the marriage customs of Australian tribes.
The fact that the comparative study of legal evolution is chiefly represented by investigations of early institutions is therefore a characteristic, but not a necessary feature in the treatment of the subject. But it is essential to this treatment that it should be historical and comparative. Historical, because it is only as history, i.e. a sequence of stages and events, that development can be thought of. Comparative, because it is not the casual notices about one or the other chain of historical facts that can supply the basis for any scientific induction. Comparisons of kindred processes have to be made in order to arrive at any conception of their general meaning and scientific regularity. As linguistic science differs from philology in so far as it treats of the general evolution of language and not of particular languages, even so comparative jurisprudence differs from the history of law as a study of general legal evolution distinct from the development of one or the other national branch of legal enactment. Needless to say that there are intermediate shades between these groups, but it is not to these shades we have to attend, but to the main distinctions and divisions.