(c) The next group of analogies is formed by cases which may be reduced to common origin. In addition to what has already been said on the subject in connexion with the literature of the historical school, we must point out that in the case of kindred peoples this form of derivation has, of course, to be primarily considered. This is especially the case when we have to deal with the original stock of cultural notions of a race, and when analogies in the framing and working of institutions and legal rules are supported by linguistic affinities. The testimony of the Aryan languages in regard to terms denoting family organization and relationship can in no way be disregarded, whatever our view may be about the most primitive stages of development in this respect. The fact that the common stock of Aryan languages and of Aryan legal customs points to a patriarchal organization of the family may be regarded as established, and it is certainly an important fact drawn from a very ancient stage of human history, although there are indications that still more primitive formations may be discovered.
Inferences in the direction of common origin become more doubtful when we argue, not that certain facts proceed from a common stock of notions embodied in the early culture of a race before it was broken up into several branches, but that they have to be accounted for as instances of a similar treatment of legal problems by different peoples of the same ethnic family. The only thing that can be said in such a case is that, methodically, the customs of kindred nations have the first claim to comparison. It is evident that in dealing with blood feud, composition for homicide, and the like, among the Germans or Slavs, the evidence of other Aryan tribes has to be primarily studied. But it is by no means useless for the investigator of these problems to inform himself about the aspect of such customs in the life of nations of other descent, and especially of savage tribes. The motives underlying legal rules in this respect are to a large extent suggested by feelings and considerations which are not in any way peculiarly Aryan, and may be fully illustrated from other sources, as has been done e.g. in Steinmetz’s Origins of Punishment.
(d) This leads to the consideration of what maybe called disconnected analogies. They are instructive in so far as they go back, not to any continuous development, but to the fundamental, psychological and logical unity of human nature. In similar circumstances human beings are likely to solve the same problems in the same way. Take a rather late and special case. In the Anglo-Saxon laws of Ine, a king who lived in the 7th century, it is enacted that no landowner should be allowed to claim personal labour service from his tenants unless he provides them not merely with land, but with their homesteads. Now an exactly similar rule is found in the statement of rural by-laws to be enforced on great domains in Africa, which had been taken over by the imperial fiscus—the Lex Manciana (cf. Schulten, Lex manciana). There is absolutely no reason for assuming a direct transference of the rule from one place to the other: it reflects considerations of natural equity which in both cases were directed against similar encroachments of powerful landowners on a dependent peasant population. In both instances government interfered to draw the line between the payment of rent and the performance of labour, and fastened on the same feature to fix the limit, namely, on the difference between peasants living in their own homes and those who had been settled by the landowner on his farms. Of such analogies, the study of savage life presents a great number, e.g. the widely spread practices of purification by ordeal (H. C. Lea, Superstition and Force).
(e) Organizing thought always seeks to substitute order for chaotic variety. Observations as to disconnected analogies lead to attempts to systematize them from some comprehensive point of view. These attempts may take the shape of a theory of consecutive stages of development. Similar facts appear over and over again in ethnological and antiquarian evidence, because all peoples and tribes, no matter what their race and geographical position, go through the same series of social arrangements. This is the fundamental idea which directed the researches of Maine, McLennan, Morgan, Post, Kohler, although each of these scholars formulated his sequence of stages in a peculiar way. McLennan, for instance, puts the idea referred to in the following words:—
“In short, it is suggested to us, that the history of human society is that of a development following very slowly one general law, and that the variety of forms of life—of domestic and civil institution—is ascribable mainly to the unequal development of the different sections of mankind.... The first thing to be done is to inform ourselves of the facts relating to the least developed races. To begin with them is to begin with history at the farthest-back point of time to which, except by argument and inference, we can reach. Their condition, as it may to-day be observed, is truly the most ancient condition of man” (Studies in Ancient History, 2nd series, 9, 15).
On this basis we might draw up tables of consecutive stages, of which the simplest may be taken from Post:—
“Four types of organization: the tribal, the territorial, the seignorial, and the social. The first has as its basis marriage and relationship by blood; the second, neighbouring occupation of a district; the third, patronage relations between lord and dependants; the fourth, social intercourse and contractual relations between individual personalities” (Post, Grundriss, i. 14).
This may be supplemented from Friedrichs in regard to initial stages of family organization. He reckons four stages of this kind: promiscuity, loose relations, matriarchal family, patriarchal family, modern, bilateral family (Z. f. vgl. R. wissenschaft). This mode of grouping similar phenomena as a sequence of stages leads to a conception of universal history of a peculiar kind. And as such it has been realized and advocated by Kohler (see e.g. his article in Helmolt’s World’s History, Eng. trans. i.). Prompted by this conception several representatives of comparative jurisprudence have found no difficulty to insert such a peculiar institution as group-marriage into the general and obligatory course of legal evolution. It is to be noticed, however, that Kohler himself has entered a distinct protest against McLennan’s and Post’s view that the more rudimentary a people’s culture is, the more archaic it is, and the earlier it has to be placed in the natural sequence of evolution. This would create difficulties in the case of tribes of exceedingly low culture, like the Ceylon Veddahs, who live in monogamous and patriarchal groups. According to Kohler’s view, neither the mere fact of a low standard of culture, nor the fact that a certain legal custom precedes another in some cases in point of time, settles the natural sequence of development. The process of development must be studied in cases when it is sufficiently clear, gaps in other cases have to be supplied accordingly, and the working together of distinct institutions, especially in cases when there is no ethnic connexion has to be especially noticed. These are counsels of perfection, but Kohler’s own example shows sufficiently that it is not easy to follow them to the letter. One thing is, however, clearly indicated by these and similar criticisms; it is, at the least, premature to sketch anything like a course of universal development for legal history. We have grave doubts whether the time will ever come for laying down any single course of that kind. The attempts made hitherto have generally led to overstating the value of certain parts of the evidence and to squeezing special traits into a supposed general course of evolution.
(f) Another group of thinkers is therefore content to systematize and explain the material from the point of view, not of universal history, but of correspondence to economic stages and types. This is, as we have seen, the leading idea in Dargun’s or Hildebrand’s investigations. It is needless to go into the question of the right or wrong of particular suggestions made by these writers. The place assigned to individualism and collectivism may be adequate or not; how far can be settled only by special inquiries. But the general trend of study initiated in this direction is certainly a promising one, if only one consideration of method is well kept in view. Investigators ought to be very chary of laying down certain combinations as the necessary outcome of certain economic situations. Such combinations or consequences certainly exist; pastoral husbandry, the life of scattered hunting groups, the conditions of agriculturists under feudal rule, certainly contain elements which will recur in divers ethnical surroundings. But we must not forget a feature which is constantly before our eyes in real life: namely, that different minds and characters will draw different and perhaps opposite conclusions in exactly similar outward conditions. This may happen in identical or similar geographical environment; let us only think of ancient Greeks and Turks on the Balkan peninsula, or of ancient Greeks and modern Greeks for that matter. But even the same historical medium leaves, as a rule, scope for treatment of legal problems on divers lines. Take systems of succession. They exercise the most potent influence on the structure and life of society. Undivided succession, whether in the form of primogeniture or in that of junior right, sacrifices equity and natural affection to the economic efficiency of estates. Equal-partition rules, like gavelkind or parage, lead in an exactly opposite direction. And yet both sets of rules coexisted among the agriculturists of feudal England; communities placed in nearly identical historical positions followed one or the other of these rules. The same may be said of types of dwelling and forms of settlement. In other words, it is not enough to start from a given economic condition as if it were bound to regulate with fatalistic precision all the incidents of legal custom and social intercourse. We have to start from actual facts as complex results of many causes, and to try to reduce as much as we can of this material to the action of economic forces in a particular stage or type of development.
(g) The psychological diversities of mankind in dealing with the same or similar problems of food and property, of procreation and marriage, of common defence and relationship, of intercourse and contrast, &c., open another possibility for the grouping of facts and the explanation of their evolution. It may be difficult or impossible to trace the reasons and causes of synthetic combinations in the history of society. That is, we can hardly go beyond noting that certain disconnected features of social life appear together and react on each other. But it is easier and more promising to approach the mass of our material from the analytical side, taking hold of certain principles, or rules, or institutions, and tracing them to their natural consequences either through a direct systematization of recorded facts or, when these fail, through logical inferences. Some of the most brilliant and useful work in the historical study of law has been effected on these lines. Mommsen’s theory of Roman magistracy, Jhering’s theory of the struggle for right, Kohler’s view of the evolution of contract, &c., have been evolved by such a process of legal analysis; and, even when such generalizations have to be curtailed or complicated later on, they serve their turn as a powerful means of organizing evidence and suggesting reasonable explanations. The attribute of “reasonableness” has to be reckoned with largely in such cases. Analytical explanations are attractive to students because they substitute logical clearness for irrational accumulation of traits and facts. They do so to a large extent through appeals to the logic and to the reason common to us and to the people we are studying. This deductive element has to be closely watched and tested from the side of a concrete study of the evidence, but it seems destined to play a very prominent part in the comparative history of law, because legal analysis and construction have at all times striven to embody logic and equity in the domain of actual interests and forces. And, as we have seen in our survey of the literature of the subject, recent comparative studies tend to make the share of juridical analysis in given relative surroundings larger and larger. What is so difficult of attainment to single workers—a harmonious appreciation of the combined influences of common origin, reception of foreign custom, recurring psychological combinations, the driving forces of economic culture and of the dialectical process of legal thought, will be achieved, it may be hoped, by the enthusiastic and brotherly exertions of all the workers in the field.