1. The idea that the legal enactments and customs of different countries should be compared for the purpose of deducing general principles from them is as old as political science itself. It was realized with especial vividness in epochs when a considerable material of observations was gathered from different sources and in various forms. The wealth of varieties and the recurrence of certain leading views in them led to comparison and to generalizations based on comparison. Aristotle, who lived at the close of a period marked by the growth of free Greek cities, summarized, as it were, their political experience in his Constitutions and Politics; students of these know that the Greek philosopher had to deal with not only public law and political institutions, but also to some extent private, criminal law, equity, the relations between law and morals, &c.
Another great attempt at comparative observation was made at the close of the pre-revolutionary period of modern Europe. Montesquieu took stock of the analogies and contrasts of law in the commonwealths of his time and tried to show to what extent particular enactments and rules were dependent on certain general currents in the life of societies—on forms of government, on moral conditions corresponding to these, and ultimately on the geographical facts with which various nationalities and states have to reckon in their development.
These were, however, only slight beginnings, general forecasts of a coming line of thought, and Montesquieu’s remarks on laws and legal customs read now almost as if they were meant to serve as materials for social Utopias, although they were by no means conceived in this sense. At this distance of time we cannot help perceiving how fragmentary, incomplete and uncritical his notions of the facts of legal history were, and how strongly his thought was biased by didactic considerations, by the wish to teach his contemporaries what politics and law should be.
It was reserved for the 19th century to come forward with connected and far-reaching investigations in this field as in many others. We are not deceived by proximity and self-consciousness when we affirm that comparative jurisprudence, as understood in these introductory remarks, dates from the 19th century and especially from its second half.
There were many reasons for such a new departure: two of these reasons have been especially manifest and decisive. The 19th century was an eminently historical and an eminently scientific age. In the domain of history it may be said that it opened an entirely new vista. While, speaking roughly, before that time history was conceived as a narrative of memorable events, more or less skilful, more or less sensational, but appealing primarily to the literary sense of the reader, it became in the course of the 19th century an encyclopaedia of reasoned knowledge, a means of understanding social life by observing its phenomena in the past. The immense growth of historical scholarship in that sense, and the transformation of its aims, can hardly be denied.
Apart from the personal efforts of eminent writers, a great and general movement has to be taken into account in order to explain this remarkable stage of human thought. The historic bent of mind of 19th-century thinkers was to a great extent the result of heightened political and cultural self-consciousness. It was the reflection in the world of letters of the tremendous upheaval in the states of Europe and America which took place from the close of the 18th century onwards. As one of the greatest leaders of the movement, Niebuhr, pointed out, the fact of being a witness of such struggles and catastrophes as the American Revolution, the French Revolution, the Napoleonic Empire and the national reaction against it, taught every one to think historically, to appreciate the importance of historical factors, to measure the force not only of logical argument and moral impulse, but also of instinctive habits and traditional customs. It is not a matter of chance that the historical school of jurisprudence, Savigny’s doctrine of the organic growth of law, was formed and matured while Europe collected its forces after the most violent revolutionary crisis it had ever experienced, and in most intimate connexion with the romantic movement, a movement animated by enthusiastic belief in the historical, traditional life of social groups as opposed to the intellectual conceptions of individualistic radicalism.
On the other hand, the 19th century was a scientific age and especially an age of biological science. Former periods—the 16th and 17th centuries especially—had bequeathed to it high standards of scientific investigation, an ever-increasing weight of authority in the direction of an exact study of natural phenomena and a conception of the world as ruled by laws and not by capricious interference. But these scientific views had been chiefly applied in the domain of mathematics, astronomy and physics; although great discoveries had already been made in physiology and other branches of biology, yet the achievements of 19th-century students in this respect far surpassed those of the preceding period. And the doctrine of transformation which came to occupy the central place in scientific thought was eminently fitted to co-ordinate and suggest investigations of social facts. As F. York Powell put it, Darwin is the greatest historian of modern times, and certainly an historian not in the sense of a reader of annals, but in that of a guide in the understanding of organic evolution. Though much is expressed in the one name of Darwin, it is perhaps even more momentous as a symbol of the tendency of a great age than as a mark of personal work. To this tendency we are indebted for the rise of anthropology and of sociology, of the scientific study of man and of the scientific study of society. Of course it ought not to be disregarded that the application of scientific principles and methods to human and social facts was made possible by the growth of knowledge in regard to savage and half-civilized nations called forth by the increased activity of European and American business men, administrators and explorers. Ethnography and ethnology have brought some order into the wealth of materials accumulated by generations of workers in this direction, and it is with their help that the far-reaching generalizations of modern inquirers as to man and society have been achieved.
2. It is not difficult to see that the comparative study of legal evolution finds its definite place in a scientific scheme elaborated from such points of view. Let us see how, as a matter of fact, the study in question arose and what its progress has been. The immediate incitement for the formation of comparative jurisprudence was given by the great discoveries of comparative philology. When the labours of Franz Bopp, August Schleicher, Max Müller, W. D. Whitney and others revealed the profound connexion between the different branches of the Indo-European race in regard to their languages, and showed that the development of these languages proceeded on lines which might be studied in a strictly scientific manner, on the basis of comparative observation and with the object of tracing the uniformities of the process, it was natural that students of religion, of folk-lore and of legal institutions took up the same method and tried to win similar results (Sir H. Maine, Rede lecture in Village Communities, 3rd ed.).
It is interesting to note that one of the leading scholars of the Germanistic revival in the beginning of the 19th century, Jacob Grimm, a compeer of Savigny in his own line, took up with fervent zeal and remarkable results not only the scientific study of the German language, but also that of Germanic mythology and popular law. His Rechtsalterthümer are still unrivalled as a collection of data as to the legal lore of Teutonic tribes. Their basis is undoubtedly a narrow one: they treat of the varieties of legal custom among the continental Germans, the Scandinavians and the Germanic tribes of Great Britain, but the method of treatment is already a comparative one. Grimm takes up the different subjects—property, contract, procedure, succession, crime, &c.—and examines them in the light of national, provincial and local customs, sometimes noticing expressly affinities with Roman and Greek law (e.g. the subject of imprisonment for debt, Rechtsalterthümer, 4th ed., vol. ii., p. 165).
A broader basis was taken up by a linguist who tried to trace the primitive institutions and customs of the early Aryans before their separation into divers branches. Adolphe Pictet (Les Origines indo-européennes, i. 1859; ii. 1863) had to touch constantly on questions of family law, marriage, property, public authority, in his attempt to reconstruct the common civilization of the Aryan race, and he did so on the strength of a comparative study of terms used in the different Indo-European languages. He showed, for instance, how the idea of protection was the predominant element in the position of the father in the Aryan household. The names pîtar, pater, πατήρ, father, which recur in most branches of the Aryan race, go back to a root pā-, pointing to guardianship or protection. Thus we are led to consider the patria potestas, so stringently formulated in Roman law, as an expression of a common Aryan notion, which was already in existence before the Aryan tribes parted company and went their different ways. Descriptions of Aryan early culture have been given several times since in connexion with linguistic observations. An example is W. E. Hearn’s Aryan Household (1879). Fustel de Coulanges’ famous volume on the ancient city and Rudolf von Jhering’s studies of primitive Indo-European institutions (Vorgeschichte der Indoeuropäer) start from similar observations, although the first of these scholars is chiefly interested in tracing the influence of religion on the material arrangements of life, while the latter draws largely on principles of public and private law, studied more especially in Roman antiquity.