3. The chief work in that direction has been achieved in one sense by a German scholar, B. W. Leist. His Graeco-Roman legal history, his Jus Gentium of Primitive Aryans, and his Jus Civile of Primitive Aryans, form the most complete and learned attempt not only to reconstitute the fundamental rules of common Aryan law before the separation of tongues and nations, but also to trace the influence of this original stock of juridical ideas in the later development of different branches of the Aryan race. These three books present three stages of comparison, marked by a successive widening of the horizon. He began his legal history by putting together the data as to Roman and Greek legal origins; in the Alt-arisches Jus Gentium the material of Hindu law is not only drawn into the range of observation, but becomes its very centre; in the Alt-arisches Jus Civile the legal customs of the Zend branch, of Celts, Germans and Slavs, are taken into account, although the most important part of the inquiry is still directed to the combination of Hindu, Greek and Roman law. In this way Leist builds up his theories by the comparative method, but he restricts its use consciously and consistently to a definite range. He does not want to plunge into haphazard analogies, but seeks common ground before all things in order to be able to watch for the appearance of ramifications and to explain them. According to his view comparison is of use only between “coherent” lines of facts. Common origin, not similarity of features, appears to him as the fundamental basis for fruitful comparison. It may be said that Leist’s work is characterized by the attempt to draw up a continuous history of a supposed archaic common law of the Aryan race rather than to put different solutions of kindred legal problems by the side of each other. For him Aryan tribal organization with its double-sided relationship—cognatic and agnatic—through men and through women—is one, and although he does not draw its picture as Fustel de Coulanges does by the help of traits taken indiscriminately from Hindu, Roman and Greek material, although he notices divisions, degrees and variations, at bottom he writes the history of one set of principles exemplified and modulated, as it were, in the six or seven main varieties of the race. Even so the nine rules of conduct prescribed by Hindu sacral law are, according to his view, the directing rules of Roman, Greek, Germanic, Celtic, Slavonic legal custom—the duties in regard to gods, parents and fatherland, guests, personal purity, the prohibitions against homicide, adultery and theft—are variations of one and the same religious, moral and legal system, and their original unity is reflected and proved by the unity of legal terminology itself.
The same leading idea is embodied in the books of Otto Schräder—Urgeschichte und Sprachvergleichung (1st ed., 1883; 2nd ed., 1890) and Reallexikon der indogermanischen Altertumskunde (1901). In this case we have to do not with a jurist but with a linguist and a student of cultural history. His training made him especially fit to trace the national affinities in the data of language, and the sense of the intimate connexion between the growth of institutions on one side, of words and linguistic forms on the other, underlies all his investigations. But Schrader testifies also to another powerful influence—to that of Victor Hehn, the author of a remarkable book on early civilization, Kulturpflanzen und Hausthiere in ihrem Übergang aus Asien in Europa (1st ed., 1870; 7th ed., 1902), dealing with the migrations of tribes and their modes of acquiring material civilization. Although the linguistic and archaeological sides naturally predominate in Schrader’s works, he has constantly to consider legal subjects, and he strives conscientiously to obtain a clear and common-sense view of the early legal notions of the Aryans. Speaking of the “ordeals,” the “waging of God’s law,” for example, he traces the customs of purification by fire, water, iron, &c., to the practice of oaths (Sans. am; Gr. ὄμνυμι; O. Ital. omr = first group; O. Ger. aiþs, Ir. óeth = second group; O. Norse rota, Arm. erdnum = I swear = third group). The central idea of the ordeal is thus shown to be the imprecation—“Let him be cursed whose assertion is false.”
The comparative study of the Aryan group assumed another aspect in the works of Sir Henry Maine. He did not rely on linguistic affinities, but made great use of another element of investigation which plays hardly any part in the books of the writers mentioned hitherto. His best personal preparation for the task was that he had not only taught law in England, but had come into contact with living legal customs in India. For him the comparison between the legal lore of Rome and that of India did not depend on linguistic roots or on the philological study of the laws of Manu, but was the result of recognizing again and again, in actual modern custom, the views, rules and institutions of which he had read in Gaius or in the fragments of the Twelve Tables. The sense of historical analogy and evolution which had shown itself already in the lectures on Ancient Law, which, after all, were mainly a presentment of Roman legal history mapped out by a man of the world, averse from pedantic disquisitions. But what appears as the expression of Maine’s personal aptitude and intelligent reading in Ancient Law gets to be the interpretation of popular legal principles by modern as well as by ancient instances of their application in Village Communities, The Early History of Institutions, Early Law and Custom. The evolution of property in land out of archaic collectivism, ancient forms of contract and compulsion, rudimentary forms of feudalism and the like, were treated in a new light in consequence of systematic comparisons with the conditions not only of India but of southern Slavonic nations, medieval celts and Teutons. This breadth of view seemed startling when the lectures appeared, and the original treatment of the subject was hailed on all sides as a most welcome new departure in the study of legal customs and institutions. And yet Maine set very definite boundaries to his comparative surveys. He renounced the chronological limitation confining such inquiries to the domain of antiquaries, but he upheld the ethnographical limitation confining them to laws of the same race. In his case it was the Aryan race, and in his Law and Custom he opposed in a determined manner the attempts of more daring students to extend to the Aryans generalizations drawn from the life of savage tribes unconnected with the Aryans by blood.
Thus, notwithstanding all diversities in the treatment of particular problems, one leading methodical principle runs through the works of all the above-mentioned exponents of comparative study. It was to proceed on the basis of common origin and on the assumption of a certain common stock of language, religion, material culture, and law to start with. What Pictet, Leist, Schrader, and Maine were doing for the Aryans, F. Hommel, Robertson Smith and others did in a lesser degree for the Semitic race.
4. The literary group which started from the discoveries of comparative philology and history was met on the way by what may be called the ethnological school of inquirers. The original impetus was given, in this case, by jurists and historians who took up the study in the field of ancient history, but treated it from the beginning in such a way as to break up the subdivisions of historic races and to direct the inquiry to a state of culture best illustrated by savage customs. The first impulse may be said to have come from J. J. Bachofen (Mutterrecht, 1861; Antiquarische Briefe, 1880; Die Sage von Tanaquil). All the representatives of Aryan antiquities are at one in laying stress on the patriarchal and agnatic system of the kindreds in the different Aryan nations; even Leist, although dwelling on the importance of cognatic ties, looks to agnatic relationship for the explanation of military organization and political authority. And undoubtedly, if we argue from the predominant facts and from the linguistic evidence of parallel terms, we are led to assume that already before their separation the Aryans lived in a patriarchal state of society. Now, Bachofen discovered in the very tradition of classical antiquity traces of a fundamentally different state of things, the central conception of which was not patriarchal power, but maternity, relationship being traced through mothers, the wife presenting the constant and directing element of the household, while the husband (and perhaps several husbands) joined her from time to time in more or less inconstant unions. Such a state of society is definitely described by Herodotus in the case of the Lycians, it is clearly noticeable even in later historical times in Sparta; the passage from this matriarchal conception to the recognition of the claims of the father is reflected in poetical fiction in the famous Orestes myth, based on the struggle between the moral incitement which prompted the son to avenge his father and the absolute reverence for the mother required by ancient law. Although chiefly drawing his materials from classical literature, Bachofen included in his Antiquarian Letters an interesting study of the marriage custom and systems of relationship of the Malabar Coast in India; they attracted his attention by the contrasts between different layers of legal tradition—the Brahmans living in patriarchal order, while the class next to them, the Nayirs (Nairs), follow rules of matriarchy.
Similar ideas were put forward in a more comprehensive form by J. F. McLennan. His early volume (Studies in Ancient History, 1876) contains several essays published some time before that date. He starts from the wide occurrence of marriage by capture in primitive societies, and groups the tribes of which we have definite knowledge into endogamous and exogamous societies according as they take their wives from among the kindred or outside it. Marriage by capture and by purchase are signs of exogamy, connected with the custom in many tribes of killing female offspring. The development of marriage by capture and purchase is a powerful agent in bringing about patriarchal rule, agnatic relationship, and the formation of clans or gentes, but the more primitive forms of relationship appear as variations of systems based on mother-right. These views are supported by ethnological observations and used as a clue to the history of relationship and family law in ancient Greece. In further contributions published after McLennan’s death these researches are supplemented and developed in many ways. The peculiarities of exogamous societies, for instance, are traced back to the even more primitive practice of Totemism, the grouping of men according to their conceptions of animal worship and to their symbols. McLennan’s line of inquiry was taken up in a very effective manner not only by anthropologists like E. B. Tylor or A. Lang, but also in a more special manner by students of primitive family law. One of the most brilliant monographs in this direction is Robertson Smith’s study of Kinship and Marriage in Arabia.
But perhaps the most decisive influence was exercised on the development of the ethnological study of law by the discoveries of an American, Lewis H. Morgan. In his epoch-making works on Systems of Consanguinity (1869) and on Ancient Society (1877) he drew attention to the remarkable fact that in the case of a number of tribes—the Red Indians of America, the Australian black tribes, some of the polar races, and several Asiatic tribes, mostly of Turanian race—degrees of relationship are reckoned and distinguished by names, not as ties between individuals, but as ties between entire groups, classes or generations. Instead of a mother and a father a man speaks of fathers and mothers; all the individuals of a certain group are deemed husbands or wives of corresponding individuals of another group; sisters and brothers have to be sought in entire generations, and not among the descendants of a definite and common parent, and so forth. There are variations and types in these forms of organization, and intermediate links may be traced between unions of consanguine people—brothers and sisters of the same blood—on the one hand, and the monogamic marriage prevailing nowadays, on the other; but the central and most striking fact seems to be that in early civilizations, in conditions which we should attribute to savage and barbarian life, marriage appears as a tie, not between single pairs, but between classes, all the men of a class being regarded as potential or actual husbands of the women of a corresponding class. Facts of this kind produce very peculiar and elaborate systems of relationship, which have been copiously illustrated by Morgan in his tables. In his Ancient Society he attempted to reduce all the known forms and facts of marriage and kinship arrangements to a comprehensive view of evolution leading up to the Aryan, Semitic and Uralian family, as exhibiting the most modern type of relationship.
These observations, in conjunction with Bachofen’s and McLennan’s teaching on mother-right, brought about a complete change of perspective in the comparative study of man and society. The rights of ethnologists to have their say in regard to legal, political and social development was forcibly illustrated from both ends, as it were. On the one hand, classical antiquity itself proved to be a rather thin layer of human civilization hardly sufficient to conceal the long periods of barbarism and primitive evolution which had gone to its making. On the other hand, unexpected combinations in regard to family, property, social order, were discovered in every corner of the inhabited world, and our trite notions as to the character of laws and institutions were reduced to the rank of variations on themes which recur over and over again, but may be and have been treated in very different ways.
There is no need to speak of the use made of ethnological material in the wider range of anthropological and sociological studies—the works of Tylor, Lubbock, Lippert, Spencer are in everybody’s hands—but attention must be called to the further influence of the ethnological point of view in comparative jurisprudence. An interesting example of the passage from one line of investigation to another, from the historical to the anthropological line, if the expression may be used for the sake of brevity, is presented in the works of one of the founders of the Zeitschrift für vgl. Rechtswissenschaft—Franz Bernhöft. He appears in his earlier books as an exponent of the comparative study of Greek and Roman antiquities, more or less in the style of Leist. Like the latter he was gradually incited to draw India into the range of his observations, but unlike Leist, he ended by fully recognizing the importance of ethnological evidence, and although he did not do much original research in that direction himself, the influence of Bachofen and of the ethnologists made itself felt in Bernhöft’s treatment of classical antiquity itself: in his State and Law in Rome at the Time of the Kings he starts from the view that patricians and plebeians represent two ethnological layers of society—a patriarchal Aryan and a matriarchal pre-Aryan one.
But, of course, the utmost use was made of ethnological evidence by writers who cut themselves entirely free from the special study of classical or European antiquities. The enthusiasm of the explorers of new territory led them naturally to disregard the peculiar claims of European development in the history of higher civilization. They wanted material for a study of the genus homo in all its varieties, and they had no time to look after the minute questions of philological and antiquarian research which had so long constituted the daily bread of inquirers into the history of laws. The most characteristic representative of the new methods of extensive comparison was undoubtedly A. H. Post (1839-1895)—the author of many works, in which he ranges over the whole domain of mankind—Hovas, Zulus, Maoris, Tunguses, alternating in a kaleidoscopic fashion with Hindus, Teutons, Jews, Egyptians. The order of his compositions is systematic, not chronological or even ethnographical in the sense of grouping kindred races together. He takes up the different subdivisions of law and traces them through all the various tribes which present any data in regard to them. His method is not only not bound by history, it is opposed to it. He writes:—