“The method of comparative ethnology is different from the historical method, inasmuch as it collects the given material from an entirely distinct point of view. Historical investigation tries to get at the causes of the facts of rational life by observing the development of these facts from such as preceded them within the range of separate kindreds, tribes and peoples. The investigation of comparative ethnology inquires after the causes of facts in national life by collecting identical or similar ethnological data wherever they may be found in the world, and by drawing inferences from these materials to identical or similar causes. This method is therefore quite unhistorical. It severs things that have been hitherto regarded as closely joined and arranges these shreds into new combinations” (Grundriss, i. 14).
This is not a mere paradox, but the necessary outcome of the situation in respect of the material used. What is being sought is not common origin or a common stock of ideas, but recourse to similar expedients in similar situations, and it is one of the most striking results of ethnology that it can show how peoples entirely cut off from each other and even placed in very different planes of development can resort to analogous solutions in analogous emergencies. Is not the custom of the so-called Couvade—the pretended confinement of the husband when a child is born to his wife—a most quaint and seemingly recondite ceremony? Yet we find it practised in the same way by Basques, Californian Indians, and some Siberian tribes. They have surely not borrowed from each other, nor have they kept the ceremony as a remnant of the time when they formed one race: in each case, evidently the passage from a matriarchal state to a patriarchal has suggested it, and a very appropriate method it seems to establish the fact of fatherhood in a solemn and graphic though artificial manner. Again, an inscription from the Cretan town of Gortyn, published in the American Journal of Archaeology (2nd series, vol. i., 1897) by Halbherr, tells us that the weapons of a warrior, the wool of a woman, the plough of a peasant, could not be taken from them as pledges. We find a similar idea in the prohibition to take from a knight his weapons, from a villein his plough, in payment of fines, which obtained in medieval England and was actually inserted in Magna Carta. Here also the similarity extends to details, and is certainly not derived from direct borrowing or common origin but from analogies of situations translating themselves into analogies of legal thought. It may be said in a sense that for the ethnological school the less relationship there is between the compared groups the more instructive the comparison turns out to be.
The collection of ethnological parallels for the use of sociology and comparative jurisprudence has proceeded in a most fruitful manner. By the side of special monographs about single tribes or geographical groups of tribes, such as Kamilaroi and Kurnai, by L. Fison & A. W. Howitt (1880), and The Native Tribes of Australia, by Baldwin Spencer & F. G. Gillen (1899), the whole range of ethnological jurisprudence was gone through by Wilken in regard to the inhabitants of the Dutch possessions in Asia, by M. M. Kovalevsky in regard to Caucasians, &c. As a rule the special monographs turned out to be more successful than the general surveys, but the interest of the special monographs themselves depended partly on the fact that people’s eyes had been opened to the recurrence of certain widespread phenomena and types of development.
5. Ethnologists of Post’s school have not had it entirely their own way, however. Not only did their natural opponents, the philologists, historians and jurists, reproach them with lack of critical discrimination, with a tendency to disregard fundamental distinctions, to wipe out characteristic features, to throw the most disparate elements into the same pot. In their own ranks a number of conscientious and scientifically trained investigators protested against the haphazard manner in which the most intricate problems were treated, and sought to evolve more definite methodical rules. P. and F. Sarrasin in their description of the Ceylon Veddahs showed a most primitive race scattered in small clusters, monogamous and patriarchal in their marriage customs and systems of relationship. E. A. Westermarck challenged the sweeping generalizations indulged in by many ethnologists about primitive promiscuity in sexual relations and the necessary passage of all human tribes through the stages of matriarchy and group marriage.
A very interesting departure was attempted by Dargun in his studies on the origin and development of property and his treatise on mother-right and marriage by capture. His lead was followed by R. Hildebrand in the monograph on law and custom. The principal idea of these inquirers may be stated as follows. We must utilize ethnological as well as historical materials from the whole world, but it is no use doing this indiscriminately. Fruitful comparisons may be instituted mainly in the case of tribes on the same level in their general culture and especially their economic pursuits. Hunting tribes must be primarily compared with other hunters, fishers with fishers, pastoral nations with pastoral nations, agriculturists with agriculturists; nations in transitional stages from one type of culture to the other have to be grouped and examined by themselves. The result would be to establish certain parallel lines in the development of institutions and customs. From this point of view both Dargun and Hildebrand attacked the prevailing theory of primitive communism and insisted on the atomistic individualism of the rudimentary civilization of hunting tribes. Collectivism in the treatment of ownership, common field husbandry, practices of joint holdings, co-aration, common stores, &c., make their appearance according to Dargun in consequence of the drawing together of scattered groups and smaller independent settlements. An evolution of the same kind leading from loose unions around mothers through marriage by capture to patriarchal kindreds was traced in the history of relationship. Grosse (Die Formen der Familie und der Wirtschaft, 1896) followed in a similar strain. Another line of criticism was opened up from the side of exact sociological study. Its best exponent is Steinmetz, who represents with Wilken the Dutch group of investigators of social phenomena. He takes up a standpoint which severs him entirely from the linguistic and historic school. In a discourse on the Meaning of Sociology (p. 10) he expresses himself in the following words: “One who judges of the social state of the Hindus by the book of Manu takes the ideal notions of one portion of the people for the actual conditions of all its parts.” In regard to jurisprudence he distinguishes carefully between art and science. “Jurisprudence in the wider sense is an art, the art of framing rules for social intercourse in so far as these rules can be put into execution by the state and its organs, as well as the art of interpreting and applying these rules. In another sense it is pure science, the investigation of all consciously formulated and actually practised rules, and of their conditions and foundations, in fact of the entire social life of existing and bygone nations, without a knowledge and understanding of which a knowledge and understanding of law as its outcome is, of course, impossible.” In this sense jurisprudence is a part of ethnology and of the comparative history of culture. But in order to grapple with such a tremendous task comparative jurisprudence has not only to call to help the study of scattered ethnological facts. This is not sufficient to widen the frame of observation and to realize the relative character of the principles with which practical lawyers operate, without ever putting in question their general acceptance or logical derivations. Ethnological studies themselves have to look for guidance to psychology, especially to the psychology of emotional life and of character. Although these branches of psychological science have been much less investigated than the study of intellectual processes, they still afford material help to the ethnologist and the comparative jurist; and Steinmetz himself made a remarkable attempt to utilize a psychological analysis of the feelings of revenge in his Origins of Punishment.
6. The necessity of employing more stringent standards of criticisms and more exact methods is now recognized, and it is characteristic that the foremost contemporary representative of comparative jurisprudence, Joseph Kohler of Berlin, principal editor of the Zeitschrift für vgl. Rechtswissenschaft, often gives expression to this view. Beginning with studies of procedure and private law in the provinces of Germany where the French law of the Code Napoléon was still applied, he has thrown his whole energy into monographic surveys and investigations in all the departments of historical and ethnological jurisprudence. The code of Khammurabi and the Babylonian contracts, the ancient Hindu codes and juridical commentaries on them, the legal customs of the different tribes and provinces of India, the collection and sifting of the legal customs of aborigines in the German colonies in Africa, the materials supplied by investigators of Australian and American tribes, the history of legal customs of the Mahommedans, and numberless other points of ethnological research, have been treated by him in articles in his Zeitschrift and in other publications. Comprehensive attempts have also been made by him at a synthetic treatment of certain sides of the law—like the law of debt in his Shakespeare vor dem Forum der Jurisprudenz (1883) or his Primitive History of Marriage. Undoubtedly we have not to deal in this case with mere accumulation of material or with remarks on casual analogies. And yet the importance of these works consists mainly in their extensive range of observation. The critical side is still on the second plane, although not conspicuously absent as in the case of Post and some of his followers. We may sympathize cordially with Kohler’s exhortation to work for a universal history of law without yet perceiving clearly what the stages of this universal history are going to be. We may acknowledge the enormous importance of Morgan’s and Bachofen’s discoveries without feeling bound to recognize that all tribes and nations of the earth have gone substantially through the same forms of development in respect of marriage custom, and without admitting that the evidence for a universal spread of group-marriage has been produced. Altogether the reproach seems not entirely unfounded that investigations of this kind are carried on too much under the sway of a preconceived notion that some highly peculiar arrangement entirely different from what we are practising nowadays—say sexual promiscuity or communism in the treatment of property—must be made out as a universal clue to earlier stages of development. Kohler’s occasional remarks on matters of method (e.g. Zeitschift für vgl. Rechtswissenschaft, xii. 193 seq.) seem hardly adequate to dispel this impression. But in his own work and in that of some of his compeers and followers, J. E. Hitzig, Hellwig, Max Huber, R. Dareste, more exact forms and means of inquiry are gradually put into practice, and the results testify to a distinct heightening of the scientific standard in this group of studies on comparative jurisprudence. Especially conspicuous in this respect are three tendencies: (a) the growing disinclination to accept superficial analysis between phenomena belonging to widely different spheres of culture as necessarily produced by identical causes (e.g. Darinsky’s review of Kovalevsky’s assumptions as to group marriage among the Caucasian tribes, Z. für vgl. Rw., xiv. 151 seq.); (b) the selection of definite historical or ethnological territories for monographic inquiries, in the course of which arrangements observed elsewhere are treated as suggestive material for supplying gaps and starting possible explanations: Kohler’s own contributions have been mainly of this kind; (c) the treatment of selected subjects by an intensive legal analysis, bringing out the principles underlying one or the other rule, its possible differentiation, the means of its application in practice, &c.: Hellwig’s monograph on the right of sanctuary in savage communities (Das Asylrecht der Naturvölker) may be named in illustration of this analytical tendency. Altogether, there can be no doubt that the stage has been reached by comparative jurisprudence when, after a hasty, one might almost say a voracious consumption of materials, investigators begin to strive towards careful sifting of evidence and a conscious examination of methods and critical rules which have to be followed in order to make the investigations undertaken in this line worthy of their scientific aims. Until the latter has been done many students, whose trend of thought would seem to lead them naturally into this domain, may be repelled by the uncritical indistinctness with which mere analogies are treated as elusive proofs by some of the representatives of the comparative school. F. W. Maitland, for instance, was always kept back by such considerations.
7. It is desirable, in conclusion, to review the entire domain of comparative jurisprudence, and to formulate the chief principles of method which have to be taken into consideration in the course of this study. It is evident, to begin with, that a scientific comparison of facts must be directed towards two aims—towards establishing and explaining similarity, and towards enumerating and explaining differences. As a matter of fact the same material may be studied from both points of view, though logically these are two distinct processes.
(a) Now at this initial stage we have already to meet a difficulty and to guard against a misconception: we have namely to reckon with the plurality of causes, and are therefore debarred from assuming that wherever similar phenomena are forthcoming they are always produced by identical causes. Death may be produced by various agents—by sickness, by poison, by a blow. The habit of wearing mourning upon the death of a relation is a widespread habit, and yet it is not always to be ascribed to real or supposed grief and the wish to express it in one’s outward get-up. Savage people are known to go into mourning in order to conceal themselves from the terrible spirit of the dead which would recognize them in their everyday costume (Jhering, Der Zweck im Recht, 2nd ed., 1884-1886). This is certainly a momentous difficulty at the start, but it can be greatly reduced and guarded against in actual investigation. In the example taken we are led to suppose different origin because we are informed as to the motives of the external ceremony, and thus we are taught to look not only to bare facts, but to the psychological environment in which they appear. And it is evident that the greater the complexity of observed phenomena, the more they are made up of different elements welded into one sum, the less probability there is that we have to do with consequences derived from different causes. The recurrence of group-marriage in Australia and among the Red Indians of North America can in no way be explained by the working of entirely different agencies. And it may be added that in most cases of an analysis of social institutions the limits of human probability and reasonable assumption do not coincide with mathematical possibility in any sense. When we register our facts and causes in algebraic forms, marking the first with a, b, c, and the latter with x, y, z, we are apt to demand a degree of precision which is hardly ever to be met with in dealing with social facts and causes. Let us rest content with reasonable inferences and probable explanations.
(b) The easiest way of explaining a given similarity is by attributing it to a direct loan. The process of reception, of the borrowing of one people from the other, plays a most notable part in the history of institutions and ideas. The Japanese have in our days engrafted many European institutions on their perfectly distinct civilization; the Germans have used for centuries what was termed euphemistically the Roman law of the present time (heutiges römisches Recht); the Romans absorbed an enormous amount of Greek and Oriental law in their famous jurisprudence. A check upon explanation by direct loan will, of course, lie in the fact that two societies are entirely disconnected, so that it comes to be very improbable that one drew its laws from the other. Although migrations of words, legends, beliefs, charms, have been shown by Theodor Benfey and his school to range over much wider areas than might be supposed on the face of it, still, in the case of law, in so far as it has to regulate material conditions, the limits have perhaps to be drawn rather narrowly. In any case we shall not look to India in order to explain the burning of widows among the negroes of Africa; the suttee may be the example of this custom which happens to be most familiar to us, but it is certainly not the only root of it on the surface of the earth.
It is much more difficult to make out the share of direct borrowing in the case of peoples who might conceivably have influenced one another. A hard and fast rule cannot be laid down in such cases, and everything depends on the weighing of evidence and sometimes on almost instinctive estimates. The use of a wager for the benefit of the tribunal in the early procedure of the Romans and Greeks, the sacramentum and the πρυτανεία, with a similar growth of the sum laid down by the parties in proportion to the interests at stake, has been explained by a direct borrowing by the Romans from the Greeks at the time of the Twelve Tables legislation (Hofmann, Beiträge zur Geschichte des griechischen und römischen Rechts). No direct proof is available for this hypothesis, and the question in dispute might have lain for ever between this explanation and that based on the analogous development in the two closely related branches of law. The further study of the legal antiquities of other branches of the Aryan race leads one to suppose, however, that we have actually to do with the latter and not with the former eventuality. Why should the popular custom of the Vzdání in Bohemia (Kapras, “Das Pfandrecht in altböhmischen Landrecht,” Z. für vgl. R.-wissenschaft, xvii. 424 seq.), regulating the wager of litigation in the case of two parties submitting their dispute to the decision of a public tribunal, turn out to be so similar to the Greek and the Roman process? And the Teutonic Wedde would further countenance the view that we have to do in this case with analogous expediency or, possibly, common origin, not loans. But while dwelling on considerations which may disprove the assumption of direct loans, we must not omit to mention circumstances that may render such an assumption the best available explanation for certain points of similarity. We mean especially the recurrence of special secondary traits not deducible from the nature of the relations compared. Terminological parallels are especially convincing in such cases. An example of most careful linguistic investigation attended by important results is presented by W. Thomsen’s treatment of the affinities between the languages and cultures of the peoples of northern and eastern Europe. Taking the indications in regard to the influence of Germanic tribes on Finns and Lapps, we find, for instance, that the Finnish race has stood for some 1500 or 2000 years under “the influence of several Germanic languages—partly of a more ancient form of Gothic than that represented by Ulfilas, partly of a northern (Scandinavian) tongue and even possibly of a common Gothic-northern one.” The importance of these linguistic investigations for our subject becomes apparent when we find that a series of most important legal and political terms has been imported from Teutonic into Finnish. For example, the Finnish Kuningas, “king,” comes from a Germanic root illustrated by O. Norse konung, O. H. Ger. chuning, A.-S. cyning, Goth. thiudans. The Finnish valta, “power,” “authority,” is of Germanic origin, as shown by O. N. vald, Goth. valdan. The Finnish kihla, a compact secured by solemn promise, is akin with O. N. gisl, A.-S. gīsel, O. H. Ger. gīsal, “hostage.” The explanation for Finnish vuokra, “interest,” “usury,” is to be found in Gothic vokrs, O. N. okr, Ger. Wucher, &c. (W. Thomsen, Über den Einfluss der germanischen Sprachen auf die Finnisch-lappischen, trans. E. Sievers, 1870, p. 166 seq.; cf. W. Thomsen, The Relations between Ancient Russia and Scandinavia and the Origin of the Russian State, p. 127 seq.; Miklosich, “Die Fremdwörter in den slavischen Sprachen,” Denkschriften der Wiener Akademie, Ph. hist. Klasse, XV.).