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“As legal ideas grow and differentiate they also become more ideal, not necessarily in the ethical sense, but in the sense of being intellectual creations. This may be illustrated by the idea of ownership. Primitive man was incapable of the notion of ownership apart from possession, and any dealing with things which might have involved such legal transactions as sale or mortgage would have been entirely too fanciful and unreal to be understood. This tree of legal evolution, it would now seem, on purely logical grounds, has reached its greatest theoretical growth. Variations and adaptations in detail are possible and in many respects necessary, but great organic or systemic evolutive movements are no longer possible. The same causes produce the formal similarities among the various systems of law. They are like trees in a forest, differing in species, but all being alike in genus.
"Legal rules and institutions in their earliest development appear as instinctive adaptations of human beings on the plane of physical necessity. Food must be gotten, shelter must be provided, the sex instinct must find an outlet, and defense against enemies must be established. Law in this stage is germinal, and so far as there appears to be any regularity and continuity of response to needs they are of an unreflected kind stimulated by the hard conditions of nature. We are here far from the Austinian theory of law. It is plain, also, that 'natural man' suspects nothing of the Puchta basis of law. The element of physical force displayed on one hand by the warring aspect of nature, and on the other by the hostile instinct of mankind generated in fear and mystery, is dominant. Hobbes has aptly described the reign of nature as ‘nasty, brutish, and short'; and well may the savage greet the rising sun with shrieks of lamentation, for the day is one of misery, hunger, and death.
"No theory of human institutions has been so far from the truth as that of the paradisiacal reign of nature. This may be asserted safely, even though the sciences which discover to us the history of the earth and the records of buried ages can probably minister little to knowledge of the first steps up of the human race so far as concerns the absolute origin of law. If the theory of organic evolution is to be accepted, it is also more than probable that at the beginning of the human stage of progress, the primary activities of life were already considerably standardized by some sort of compromise of conflicting brute forces-a compromise in which there yet appeared a nobler strain shown in attachment to offspring, and even in the fact of any form of peaceable human association whatsoever, which later was destined to take on a specific ethical meaning
"In the earliest stage of legal evolution of which we have any reliable information, furnished principally by modern observations of savage groups, the law has ceased to be instinctive and has already crystallized into fixed social habits and ideas. Physical force within the group tends to become latent and to be replaced by the equally efficacious sanctions of religion and superstition. The taboo is a sufficient implement of restraint for the average tribesman, and outlawry is as rarely exceptional as our still savage use of capital punishment. In this stage mankind has achieved a distinct gain over the forces of nature. The fact that time and opportunity have conjoined to formulate a body of superstitious beliefs and rituals unmistakably shows a remainder over.
The existence of these beliefs and of these ceremonies is also an ethical gain in that the harshness and brutality of physical coercion are replaced by the more refined pressure of religious conviction. Not that the religious bond weighs less heavily than the shackles of physical restraint, for 'what the whole community comes to believe in, binds the individual as in a vise.' Nor yet does the existence of a new set of restraints mean absence of the harsher conditions of life; these conditions remain and will continue until mankind has conquered economic necessity.
“If a generalization may here be ventured, it would seem that one of the standards of social progress is the progressive elimination of the physical and material elements in the conflicts of life, and the substitution therefor of religious, ethical, and intellectual forces. In tribal society, legal order is accomplished by a variety of psychical restrainst which eventuate in physical coercion only by way of relapse from the normal conditions of legality; but outside the tribal association these psychical bonds do not reach, and physical measures are the normal measures of equalizing inter-tribal conflicts. Modern states have at once lost and gained something in their evolution out of group society. Intellectual restraints have been substituted for emotional restraints; but intellectualism as a cohesive force is a complex, a hydra-headed entity differing in marked degree from the relatively simple psychological bond which is sufficient to organize primitive societies. Primitive society from the point of view of psychological function is to the modern state as an amoeba to a mollusk.
“In their external relations modern states have not shown comparable development; resort to force is still the normal method of adjusting essential conflicts of interest, and human nature will yet erect many hecatombs before there can or will be attained a solidarity of the world based on a principle which will be recognized by all nations and peoples.
“Another cognate movement may also be observed which has been especially conspicuous within the centuries of recorded history, the expansion of liberty from the multiplied trammels which have held it enslaved, and which still in the greatest variety of forms curb the movements in thought and action of individuals, societies, and states.
“The struggle for liberty has also been the struggle of the law. It has undergone the same general evolution as the law itself, and has been influenced by the same internal and external forces which have governed the course of legal institutions.
"In the beginning, the overshadowing forces of nature and fear of enemies held man to the narrowest circles of existence. Liberty, thought of as an expression of personality in the earliest stages, can hardly be said to have existed. The foundations of restraint of liberty are physical and economic. Later when man (and we mean always man in some sort of association with his fellows) has in a limited way overcome his environment, and has invented an accepted explanation of the mysteries of nature, and when the physical and economic chains have been lengthened, new shackles of a more refined kind are added. This tendency to subject the individual to restraints either physical or psychical has persisted into the present day; for the history of life has been a chapter of bondage. So accustomed has mankind become, throughout the long history of the human race, to restraint as a part of nature, that when man is freed from one set of bonds, he instinctively forges for himself others.
“Man is born free, and he is everywhere in chains,' was the sounding statement which functioned as a bellows for the spark of a revolution. On the contrary, man was not born free, and no revolution has done anything more than to effect a substitution of one kind of restraint for another. From one point of view societies and systems of law may be regarded as highly complicated forces of resistance. In the present epoch the ferment of great economic development is bringing about and will bring considerable changes in the general content of liberty, both from a social and strictly legal point of view. Individual man attained perhaps the greatest amount of formal liberty about a hundred years ago, but the swing of events is now in the other direction; and if the next movement shall be one of real progress, it may be expected that if formal liberty is reduced again to a kind of status, material liberty will increase.
"It has been pointed out repeatedly in these studies that the course of evolution does not follow mathematical straight lines or regular curves.
Its movement is rather like that of an army which presses forward against the points of least resistance. But no description, metaphor, or analogy will be accurate as such. To speak of the last device which is commonly resorted to, one may see with Maine, the movement from status to contract as a great mechanical movement unfolding through some sixteen or seventeen centuries of European time; and, by way of reaction, the swing of events in the reverse direction from contract whose height was realized at and before the French revolution, back to status. How much or how little there may be of profit in this cyclical survey of events, it may be difficult at this time to say; but we may be sure that in human events there is no good evidence of identical cycles, although we may readily concede to legal evolution as a growth at least analogous to the ascending spiral where the corresponding curves have various interesting general resemblances profitable for a romantic view of legal evolution, if not directly available for the exacting demands of hard science.
“Summarizing what we believe has been the course of legal and social evolution, but disregarding here the various minor oscillations which have furnished the detail of history, the movement has been one which may roughly be separated into three great periods—the physical, the metaphysical, and the rational. The first largely covers the prehistoric period; the second is prehaps the earliest which can be penetrated by any of the methods which may be usefully employed in these studies; and the last represents the centuries in which the law and its institutions have been regarded as human instruments and controlled by human agencies for the attainment of human ends. Each upward epoch has had transmitted to it various survivals of an earlier origin and frequently in the long march of evolution there have been halting and even retrograde movements, which, observed in the light of decades or centuries, appear to deny any sort of constancy, regularity, or certainty of evolution or progress. One of the important tests of progress, corresponding to the stages of legal evolution, has been the rising influence of intellectual factors against the coarser materialistic foundations of law, the rise of ethical and rationalizing factors of legal development, and an increase of material freedom accompanied by differentiation of formal restraints on liberty.”
In order further to emphasize the importance to sociologists of this series, we add the table of contents of the third volume, viz.:
PART I. CRITERIA OF LEGAL EVOLUTION AND METHODS OF
Chap. i (pp. 3–76), A Classification of Social Types and a Catalogue of Peoples, S. R. Steinmetz; chap. ii (pp. 77-152), The Scientific Method of Generalizing from Data of Legal Evolution, Joseph Mazzarella; chap. iïi (pp. 153-62), Critique of Method in the Study of the Law's Evolution, John H. Wigmore.
PART II. FACTORS OF LEGAL EVOLUTION IN GENERAL
Chap. iv (pp. 163-81), Factors of Legal Evolution, Edmond Picard; chap. v (pp. 182-97), Causes for the Variation of Jural Phenomena in General, Carlo Nardi-Greco; A. Geophysical Factors, chap. vi (pp. 198–214), Law and Geography, H. J. Randall; chap. vii (pp. 215-33), Ellen Churchill Semple; B. Economic Factors, chap. viii (pp. 234-66), Achille Loria; C. Biologic Factors, chap. ix (pp. 267–87), Animal Societies and Primitive Human Societies, Adolfo Posada; chap. x (pp. 288-315), Natural Origin of Property among Birds, Beasts, and Fishes, R. Petrucci; chap. xi (pp. 316-51), Rudimentary Society among Boys, John Hemsley Johnson; D. Racial Factors, chap. xii, sec. 1 (pp. 352–55), Internal and External Factors of Legal Development, Ludwig Kuhlenbeck; sec. 2 (pp. 255-68), The Race Factor in Legal Evolution, Houston Stewart Chamberlain; chap. xiii (pp. 369–77), Influence of National Character and Historical Environment on the Development of the Common Law, James Bryce; E. Religious Factors, chap. xiv (pp. 378–92), The Influence of Religion upon Law as Illustrated by the Idea of Property, Ludwig Felix; F. Psychologic Factors, chap. xv, Sympathy in Group and Institutional Survival, Edward D. Page; G. Political Factors, chap. xvi (pp. 417-39), The Constitutional Factor of Legal Development, Emil Reich; H. Social Factors-Physical Force, chap. xvii, sec. I (pp. 440-46), The Struggle for Law, Rudolph von Jhering; sec. 2 (pp. 447-50), The Compromise Nature of Law, Adolph Merkel; chap. xviii (pp. 451-72), The Use of Conflict, Walter Bagehot; chap. xix (pp. 473-84), Struggle and Adaptation, Michel-Angelo Vaccaro; chap. xx (pp. 485-500), Arbitrament and Guaranty in the Origin of Law, Gaston Richard.
PART III. PROCESS OF LEGAL EVOLUTION Chap. xxi (pp. 501-13), Evolution of Social Structures, Lester F. Ward; chap. xxii (pp. 514-30), Social Integration and Differentiation, Herbert Spencer; chap. xxiii (pp. 531-41), Planetary Theory of the Law's Evolution, John H. Wigmore; chap. xxiv (pp. 542-70), Degenerative Evolution, Jean Demoor, Jean Massart, and Émile Vandervelde; chap. xxv (pp. 571-666), The Evolution of Civil Law, Raoul de la Grasserie; chap. xxvi (pp. 667–78), The Perpetual Evolution of Law, Edmond Picard.