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
