William Mills Ivins Sr.

“ Not the least of the beneficial results which are destined to follow upon the growth of a science of comparative jurisprudence is this, that we shall be taught to realize, more fully than ever before, that all of the phenomena of society, politics, religion, ethics, economics, art, are presented simultaneously by society, and constitute a plexus of interacting causes and effects, independent and yet interpenetrating one another, each of which can only be understood by the light of all. ”

“ It seems to us, regarding law by the light of reason alone, that it must be somewhat more than immemorial usage, that it should acknowledge the principle of amendment and growth, and that it is something separate and distinct from religion; and yet ancient societies had an entirely different notion of it, regarding it as the revelation of some deity, hallowed by custom, and absolutely immutable in its principles, being nothing less than "religion applied to the relations of men among themselves." ”

“ The true jurists, the true legislators, will learn from comparative jurisprudence the lex legum of which I have spoken; will know the veneration due to those institutions and laws which are the surest exponents of national genius, while they obey implicitly the spirit of progress. ”

“ The history of these changes is the history of social progress, of civilization; but it is unintelligible apart from comparative jurisprudence, which is not only the forerunner of a complete science of history, but of the true philosophy of law, which shall rise above all forms and customs, and discover to mankind the generative principle of the just and of the unjust, and make of positive law nothing less than organized justice and right. ”

“ So jurisprudence is compelled to regard something more than law simply, if it is to comprehend law. It has for its subject-matter the study of the relation of the fact law to all of the other facts of society, and so it goes back of positive law and seeks its springs and motives in systems like the early Roman and the Hindoo, where rites, liturgies, prayers, moral ordinances, and what we know distinctively as civil laws, appear to be mingled in mere senseless confusion. ”

“ If comparative jurisprudence deals with religions, ceremonials, customs, and politics, it is because it reaches back to a time when these and law were but slightly differentiated, when law had no peculiar accent of its own apart from that of the other institutional manifestations of social life. It can no longer be doubted that the law of evolution holds good, not only of organic processes, but of all super-organic processes as well—of the development of language, art, law, religion, and political institutions, and that in the beginning they were homogeneous and incoherent. ”

“ Now, how far a knowledge of these things, as taught by comparative jurisprudence, must modify our notions of legal history, is self apparent. The great mass of speculation in the department of social science has heretofore been uniformly wrong, simply because it never spontaneously entered the modern mind that society was possible without states, kings, parliaments, and positive laws. These elements of modern social life were combined and recombined in numberless ingenious ways in the endeavor to reconstruct the past, but it was never dreamed that they must be absolutely discarded. ”

“ We may admit the claim that the existence of an organized political power, a state, is a condition precedent to the existence of law as understood in a political society like our own, yet there was law before there was political society, and, although it lacked many elements of the modern idea of law, it nevertheless was the original point of departure, and to it we must look for the historical roots of the positive law of to-day. ”

“ In the same way we have come to regard local contiguity as the only possible basis of common political action; nevertheless, it is but yesterday that our Western world outgrew the assumption that community of worship or of blood was the sole natural ground of community in political organization. In like manner, we have been taught to believe that the individual is the necessary unit of society, and yet in all archaic societies the family is the only conceivable unit. And so the theory of relationship recognized by or law is apparently the only one which right reason can suggest ”

“ The only scholar who has as yet made any systematic and noteworthy effort to discover the causes of the primitive universality of ancestor-worship is Mr. Spencer, and his views are most worthy of attention, however liable they may be to future modification. He contends that ancestor-worship may be explained by having recourse to the ideas concerning sleep and dreams entertained by the earliest men, while they are still incapable of generalization and without any correct idea of causation and law, "lacking the very implements of developed thought." ”

“ In seeking the causes of ultimate social phenomena, we must always look to the history of the human mind, and its conditions antecedent to those phenomena. The most archaic and I mean archaic—in point of structure rather than in point of time—as well as the most modern social facts grow out of contemporaneous habits of thought. ”

“ An organized state, political sovereignty, and sanctioned laws were regarded as essential prerequisites to social existence; and, until the last generation of thinkers, there was not one who contributed a word to the philosophy of history who did not regard the state as the only possible condition of human society. ”

“ If we may claim to know more than our forefathers about the actual historical development of law, it is only because we have become possessed of a new historical method which has already wrought signal, if not fundamental, alterations in our point of view so far as regards the origin and early history of institutions. ”

“ If the institutions of the earlier time or of the less civilized people differ materially from those of our civilized states, it is mainly because of difference in conditions and methods of thought. The introduction of the history of manners and institutions into general history accomplished a great revolution in methods of historical inquiry, for it laid open the hidden springs of national strength or weakness. ”

“ And so it would seem, from the reason of the thing, that there must always have been a law of contract as known to us, yet society had become far advanced in civilization before any such law was recognized and formulated. It would seem that the individual must always have held property in his own right, must always have been at liberty to dispose of it by some method of alienation during his life, and prescribed by will or testament some disposition of it after his death ”

“ This method implies the study of law upon both its statical and its progressive sides, and discloses the processes by which it has been developed. The disclosure of the motives and processes of legal development I regard as unquestionably the most valuable of the fruits of comparative jurisprudence, for just behind them lies that subtile lex legum which has eluded the grasp of so many imaginative system builders, but which is eventually destined to be as familiar learning to the scientific jurist as Grimm's law is to the modern philologer. ”

“ To try to account for that belief by reasoning after our own approved methods methods—which at first seem to us to be the natural and only possible ones—is to grope hopelessly in the dark. We must make an effort to reconstruct primitive man on his intellectual side, as the paleontologist does on his anatomical side, and then to think as he thought. Here we leave our special department of laws and customs, and take up the study of general culture history ”

“ These ideas, he claims, account for primitive doctrines of immortality, which latter beget the worship of ancestors. Whether or not this theory of Spencer's, or Coulange's theory that early ideas of generation and creation afford the clew to the mystery, satisfactorily accounts for this primitive practice, the fact nevertheless remains, that the deification of the dead is the oldest religion known to men, which religion is the efficient cause of ancient social organization, the essential principle of archaic institutions, archaic morals, and archaic laws. ”

“ Signal novelties in thought are as limited as signal inventions in architectural construction. It is only one of the great changes in method that can remove the limits of the old combinations, by bringing new material and fundamentally altering the point of view. ”

“ But afterward organized human society draws them within the sphere of its conscience and of its freedom of action, and by its creative power gives them a positive form and a determined efficacity." Custom, then, differs from law mainly in the matter of form and sanction, not necessarily in its requirements. ”

“ The reason of ancestor-worship is discovered in the physical condition of primitive man, in his earliest methods of thought, his ideas of life and death, of life hereafter, and of the divine principle. ”