Paul Vinogradoff

“ As one of the greatest leaders of the movement, Niebuhr, pointed out, the fact of being a witness of such struggles and catastrophes as the American Revolution, the French Revolution, the Napoleonic Empire and the national reaction against it, taught every one to think historically, to appreciate the importance of historical factors, to measure the force not only of logical argument and moral impulse, but also of instinctive habits and traditional customs. ”

“ It would be out of the question here to range over the whole field of human society in search for communal arrangements of rural life. It will be sufficient to confine the present inquiry to the varieties presented by nations of Aryan race, not because greater importance is to be attached to these nations than to other branches of humankind, although this view might also be reasonably urged, but principally because the Aryan race in its history has gone through all sorts of experiences, and the data gathered from its historical life can be tolerably well ascertained. ”

“ The local monarchy of the manorial lords was fast giving way to a central power which maintained its laws, the circuits of its judges, the fiscal claims of its exchequer, the police interference of its civil officers all through the country, and, by prevailing over the franchises of manorial lords, gave shape to a vast dominion of legal equality and legal protection, in which the forces of commercial exchange, of contract, of social intercourse, found a ready and welcome sphere of action. ”

“ Besides, it has been urged over and over again that the simpler phenomena of ancient and primitive society afford more convenient material for generalizations as to legal evolution than the extremely complex legal institutions of civilized nations. But there is no determined line of division between ancient and modern comparative jurisprudence in so far as both are aiming at the study of legal development. The law of Islam or, for that matter, the German civil code, may be taken up as a subject of study quite as much as the code of Hammurabi or the marriage customs of Australian tribes. ”

“ The fact that the comparative study of legal evolution is chiefly represented by investigations of early institutions is therefore a characteristic, but not a necessary feature in the treatment of the subject. But it is essential to this treatment that it should be historical and comparative. Historical, because it is only as history, i.e. a sequence of stages and events, that development can be thought of. Comparative, because it is not the casual notices about one or the other chain of historical facts that can supply the basis for any scientific induction. ”

“ 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. ”

“ In the second sense, comparative jurisprudence is one of the aspects of so-called sociology, being the study of social evolution in the special domain of law. From this point of view it is, in substance, immaterial whether the legal phenomena subjected to investigation are ancient or modern, are drawn from civilized or from primitive communities. The fact that they are being observed and explained as features of social evolution characterizes the inquiry and forms the distinctive attribute separating these studies from kindred subjects. ”

“ These observations, in conjunction with Bachofen’s and McLennan’s teaching on mother-right, brought about a complete change of perspective in the comparative study of man and society. The rights of ethnologists to have their say in regard to legal, political and social development was forcibly illustrated from both ends, as it were. On the one hand, classical antiquity itself proved to be a rather thin layer of human civilization hardly sufficient to conceal the long periods of barbarism and primitive evolution which had gone to its making. ”

“ Instead of managing the land by the constant repetition of the same processes, by a customary immobility of tenure and service, by communalistic restrictions on private enterprise and will, local society began to try improvements, to escape from the bounds of champion farming. ”

“ 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. ”

“ Let us now compare this description of Celtic tribal tenure with Slavonic institutions. The most striking modern examples of tribal communities settled on a territorial basis are presented by the history of the Southern Slavs in the Balkan Peninsula and in Austria, of Slovenes, Croats, Serbs and Bulgarians, but it is easy to trace customs of the same kind in the memories of Western Slavs conquered by Germans, of the Poles and of the different subdivisions of the Russians. A good clue to the subject is provided by a Serb proverb which says that a man by himself is bound to be a martyr. ”

“ One more feature of the situation remains to be noticed, and it is the one which is still before our eyes in all parts of the country, that is, the commons which have survived the wholesale process of inclosure. They were an integral part of the ancient village community from the first, not only because the whole ground of a township could not be taken up by arable and meadows, at a time when population was scanty, but because there existed the most intimate connexion between the agricultural and pastoral part of husbandry in the time of the open-field system. ”

“ It is not a matter of chance that the historical school of jurisprudence, Savigny’s doctrine of the organic growth of law, was formed and matured while Europe collected its forces after the most violent revolutionary crisis it had ever experienced, and in most intimate connexion with the romantic movement, a movement animated by enthusiastic belief in the historical, traditional life of social groups as opposed to the intellectual conceptions of individualistic radicalism. ”

“ 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. ”

“ 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. ”

“ On the other hand, the 19th century was a scientific age and especially an age of biological science. Former periods—the 16th and 17th centuries especially—had bequeathed to it high standards of scientific investigation, an ever-increasing weight of authority in the direction of an exact study of natural phenomena and a conception of the world as ruled by laws and not by capricious interference. ”

“ The economic crisis of the 14th century has its complement in the legal crisis of the 15th. At that time the courts of law begin to do away with the denial of protection to villeins which, as we have seen, constituted the legal basis of villeinage. This is effected by the recognition of copyhold tenure (see Copyhold) .
It is a fact of first-rate magnitude that in the 15th century customary relations on one hand, the power of government on the other, ripened, as it were, to that extent that the judges of the king began to take cognizance of the relations of the peasants to their lords. ”

“ Instead of a mother and a father a man speaks of fathers and mothers; all the individuals of a certain group are deemed husbands or wives of corresponding individuals of another group; sisters and brothers have to be sought in entire generations, and not among the descendants of a definite and common parent, and so forth. There are variations and types in these forms of organization, and intermediate links may be traced between unions of consanguine people—brothers and sisters of the same blood—on the one hand, and the monogamic marriage prevailing nowadays, on the other ”

“ 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. ”

“ Still the tendency to treat merchet as a distinctive feature of serfdom has to be noted, and we find that the custom spread for this very reason in consequence of the encroachments of powerful lords: in the Hundred Rolls it is applied indiscriminately to the whole rustic population of certain hundreds in a way which can hardly be explained unless by artificial extension. Heriot, the surrender of the best horse or ox, is also considered as the common incident of villein tenure, although, of course, its very name proves its intimate connexion with the outfit of soldiers (here-geatu) . ”

“ In Great Russia, in the districts gathered under the sway of the Moscow tsars, the basis of the household community and of the rural settlements which sprang from it was modified in another direction. The entire agricultural population was subjected to strict supervision and coercive measures for purposes of military organization and taxation. Society was drilled into uniformity and service on the principle that every man has to serve the tsar, the upper class in war and civil administration, the lower class by agricultural labour. ”

“ The Domesday Survey puts before us the state of things in England as it was at the very beginning of the Norman and at the close of the Saxon period. The development of feudal society, of centralizing kingship and ultimately of a system of common law, brought about great changes which all hinge on the fundamental fact that the kings, while increasing the power of the state in other respects, surrendered it completely as regards the relations between the peasants and their lords. The protection of the assizes was tendered in civil matters to free tenants and refused to villeins. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ As a rule people used land as holdings, and those were rigidly classified as villein or free tenements. The interesting point to be noticed is that, without any formal break, leasing land for life and for term of years is seen to be rapidly spreading from the end of the 13th century, and numberless small tenancies are created in the 14th century which break up the disposition of the holdings. ”