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Evolution of Law: Select Readings on the Origin and Development
of Legal Institutions. Compiled by ALBERT KOCOUREK and
It is not within our competence to speak of these volumes in their relation to legal studies. For students of sociology they are important in so many different ways that they call for exceptional treatment. We cannot serve our constituency better than by reprinting the entire preface of the third volume. It is as follows:
“For the statement of the purpose of this series of volumes, we refer again to the preface of Volume I.
“I. The first volume aimed to set out concrete examples and evidences of law and legal institutions as found in ancient general literature, modern observations of retarded societies, the monuments of ancient laws and codes, and in ancient legal documents. So far as was feasible the materials there selected fall either under the category of "ancient” or “primitive.” These terms, of course, are not convertible either in the law or elsewhere. What is ancient may, or may not, be primitive; and what is primitive may, or may not, be ancient. The preponderance of interest for the student of historical jurisprudence lies in what is primitive, rather than in what is only ancient; but the probability that ancient laws and codes contain a residue of greater or less bulk of rudimentary legal ideas, we believe supports the combination of the ancient and the primitive in a general survey of legal evolution; and such combination has the distinct advantage of giving a dual basis of comparison in the study of developing legal ideas.
“On the same point, it may also be said that for the purposes which we have in view, a logical separation of strictly primitive materials from such as show development, and even a high order of development, of legal ideas, would hardly have been practicable. The peoples and laws represented therefore range through various stages of legal and social condition, from the Australian tribes or Seri Indians at one pole to the Babylonians or Egyptians on the other.
“The sources of ancient and primitive law are to be found not only in the three primary classes represented in the first volume; namely, (i) ancient literature, (ii) modern observations of retarded peoples, and (iii) the records of ancient laws and legal transactions; but valuable information is afforded also by such secondary departments of study as (i) linguistics and folklore, (ii) child psychology and animal behavior, and (iii) prehistoric anthropology and archaeology. The first and second groups, as may be seen, have a close relation point by point. The secondary group of inquiries, so far as represented, is drawn into the present volume, while more logically (though less conveniently) connected with the plan of the first volume. We regard the secondary group as one of great importance, and it is subordinate in treatment only because of the great difficulty of assembling the right materials for a course of systematic readings on law and legal institutions.
"II. The second volume is devoted to an expository treatment of legal ideas and legal institutions in their genetic and evolutionary bearing. The first two volumes are intended to be used concurrently. In the great luxuriance of writing on matters of legal history and legal evolution, it was not easy to discover, outside of such well-known authorities as Maine, Post, Leist, Kohler, Letrouneau, Laveleye, treatment of legal ideas based on a general view of the world's legal phenomena. One authority regrettably absent in our list will illustrate the proposition. The studies of Dareste (and others might be named) are confined so closely to a particular period or a particular people that the universal element in the law which we have sought to emphasize is left in the background.
“We have preferred generalization, although the caution must constantly be kept before the reader to whom this subject is a new one, that nothing in this field of investigation is more dangerous. It may well be doubted whether a sufficient amount of scientific and critical labor has been expended even yet in the collation of facts from which to draw a considerable number of inferences having anything like general or universal validity. Until a body of valid generalizations can be constructed, historical jurisprudence will remain an inchoate science. The second volume shows that a good beginning already has been made, and it may reasonably be hoped, when this science has been as long cultivated as the science of philology, that comparable results will have been attained.
* As illustrative of what may be accomplished in this field which has only very rarely touched on legal institutions, see “Nursery and Savagery” by Elsie Clews Parsons, in The Pedagogical Seminary (Clark University), Vol. XXII, No. 2, p. 296. * Johns Hopkins University Studies (1884).
“It is precisely here, we think, that ‘natural law' (that dromedary which has carried the burden of many a caravan of juridical delusion from the days of the ancient Greeks up to the present day) has its peculiar place. There appears to be a natural law of development of legal ideas, as uniform and general in its operation as Grimm's law in phonetics. The discovery of the content of this natural law is the task which the investigators in this field will have to perform, testing, verifying, and replacing the hypotheses already attempted, based on the rich accumulation of materials now available and still being industriously collected by the workers in ethnology, ethnography, anthropology, archaeology, and a variety of other fields.
“The experimental method unfortunately cannot be used in this science under the same favorable conditions as in the physical sciences. History and the physical monuments of man's activities have been the chief reliance in earlier decades in tracing the growth of the law. Later, when the essential truth of the unity of the human mind found a place, direct observation became the leading method of evolutional investigation; but the experimental method has only been at most suggested. In this connection reference may be made to the chapter by Mr. Johnson on rudimentary society among boys, reprinted in this volume, and to the study of Mr. Shinn, on mining camp customs. Both of these studies are interesting and suggestive, far beyond the actual results brought out, as indicating the possibility of a new instrument to supplement our knowledge of the course of the development of legal institutions.
“The records of written history are scanty and embrace but a small portion of man's struggles and achievements. That so much has been extracted from these fragments is a monument to the efforts made to probe out the secrets of the past. Doubtless much may yet be brought to light, but in the meantime the investigations in this field must push on in other directions. The possibility of direct observation of savage and barbarous tribes is daily being narrowed. The time approaches when savagery in the world will be an extinct phenomenon, and when barbarism will be so far contaminated with the vices and virtues of what we please to call civilization, that this avenue of insight into evolution will become more and more corrupted, and, eventually, will be abandoned. When that day comes, resort must be had to a kind of experimental method. Such a method will have difficulty in justifying
itself as scientific. The same doubt arose when the method of direct observation of retarded peoples began to be used. Both methods are based on a fundamental psychological premise, and it would seem, if this premise is valid in one case, that it should be equally valid in the other.
“There is a special kind of fascination in attempting here what seems to have been done with great success in the reconstruction of fossil remains of extinct animals. A single bone may lead to the reconstruction of the entire skeleton based on the size, shape, and function of the fragment used as a starting-point. Biological function however is immeasurably more simple than legal function; the one is related to the world of physical phenomena, the other to the world of mental and physical facts. It is not difficult to see that the organization of physical functions by way of reconstruction, while undoubtedly presenting magnificent difficulties, requires a smaller volume of contingent factors which enter into the problem of solution, than the organization of legal phenomena from isolated discoveries. And yet, all we mean to say is that the difficulties are only greater, and not that the thing itself is impossible. On the contrary, it is our belief that with greater penetration into the mental life of man' in the various stages of his evolution, there will be afforded the necessary basis for great reconstructions in the evolution of law. These will surpass in value and interest the important work already accomplished by the relatively small number of investigators who have enriched our knowledge of legal institutes within the last fifty or sixty years.
“This point of attack must be the basis of all future explanation and study. When efforts in this direction are aided and guided by scientific instruments of precision, we may expect that a fairly complete account may be given of the origin and development of all legal ideas, and that the fragments of legal life as discovered to us in the remains of distant eras will be explained, and explained perhaps in many respects differently than we now understand them, and with meanings of considerable importance to us as we think of the law as the center of all social activities with a cultural mission.
“Emphasis of the mental life will greatly enrich this science in the direction of differentiations not now recognized or slurred in favor of a simpler, but less accurate, view of legal development. Mr. Innes has furnished an interesting illustration of this in his comparison of eastern and western methods of administering justice.”
* Cf. Jung, Psychology of the Unconscious. a Hibbert Journal, January, 1913.
“The apparently (and only apparently) inefficient methods of the Mohammedan in dispensing justice cannot be explained on the basis of the customary thought of our time and place. A sympathetic understanding of the oriental point of view is necessary to overcome the narrow prejudice and the hasty judgment which would give an entirely erroneous idea of the relative position and value of a system of law applied under conditions different from those which surround the observer.
“The law therefore is relative to all its points of contact. It is one of the tasks of this kind of investigation while taking account of the common elements in human nature which predominate to produce a common and regular course of development in legal institutions, also to note the variations which depart from the main trunk of growth and throw out unfoldments which require special investigation and treatment.
“The search for unity, which is responsive to something fundamental in the human mind, has led to the greatest diversity not only in the physical sciences but perhaps especially in the social sciences. Like generalizations too rapidly invented, the insistence upon unifying principles has doubtless been something of a hindrance in the advancement of a general science of legal evolution. The presence in all systems of law of encysted ideas which mark the accidents of history, and of disused functions which are carried along in the passage of time, is frequently misunderstood, especially when such elements are emphasized as being typical of the general level of progress attained in the particular system of law under consideration. The extent to which outgrown ideas persist in legal evolution when first recognized is striking. In proof of this we have only to look about our system of law. We shall not look far before we find ideas which have lived through millenniums of the world's history and remain now as rudiments whose existence is either ignored or whose original function is misapprehended. In examining an ancient code there is always some danger of interpreting as distinctive what is merely bizarre when perhaps the phenomenon observed is only a relic of a forgotten past.
“We have already said that in our view of the subject its greatest utility-and we do not mean to assert that a thing must be useful to be valuable-lies in the possibility of applying the laws of legal evolution to the problems of the present day, and in forecasting the immediate future movement of social forces. There is, of course, a contrast between history and value, but the realization of a value is inexorably bound up with history and conditions. A modern code of partnership law or divorce law may be an excellent basis for the regulation of the commerical