Chapter 5. Primitive Society and Ancient Law

　　The necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost sight of in modern times， and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre， but there is not much presumption， I think， in asserting that what has hitherto stood in the place of a science has for the most part been a set of guesses， those very guesses of the Roman lawyers which were examined in the two preceding chapters. A series of explicit statements， recognising and adopting these conjectural theories of a natural state， and of a system of principles congenial to it， has been continued with but brief interruption from the days of their inventors to our own. They appear in the annotations of the Glossators who founded modern jurisprudence， and in the writings of the scholastic jurists who succeeded them. They are visible in the dogmas of the canonists. They are thrust into prominence by those civilians of marvellous erudition， who flourished at the revival of ancient letters. Grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. They may be read in the introductory chapters of our own Blackstone， who has transcribed them textually from Burlamaqui， and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law， it always resolves itself into a restatement of the Roman hypothesis. It is however from the disguises with which these conjectures sometimes clothe themselves， quite as much as from their native form， that we gain an adequate idea of the subtlety with which they mix themselves in human thought. The Lockeian theory of the origin of Law in a Social Compact scarcely conceals its Roman derivation， and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns； but on the other hand the theory of Hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the Romans and their disciples. Yet these two theories， which long divided the reflecting politicians of England into hostile camps， resemble each other strictly in their fundamental assumption of a non-historic， unverifiable， condition of the race. Their authors differed as to the characteristics of the prae-social state， and as to the nature of the abnormal action by which men lifted themselves out of it into that social organisation with which alone we are acquainted， but they agreed in thinking that a great chasm separated man in his primitive condition from man in society， and this notion we cannot doubt that they borrowed， consciously or unconsciously， from the Romans. If indeed the phenomena of law be regarded in the way in which these theorists regarded them —— that is， as one vast complex whole —— it is not surprising that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture which （plausibly interpreted） will seem to reconcile everything， or else that it should sometimes abjure in despair the labour of systematization.

　　from the theories of jurisprudence which have the same speculative basis as the Roman doctrine two of much celebrity must be excepted. The first of them is that associated with the great name of Montesquieu. Though there are some ambiguous expressions in the early part of the Esprit des Lois， which seem to show its writer''s unwillingness to break quite openly with the views hitherto popular the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. It has often been noticed that， amidst the vast variety of examples which， in its immense width of survey， it sweeps together from supposed systems of jurisprudence， there is an evident anxiety to thrust into especial prominence those manners and institutions which astonish the civilised reader by their uncouthness， strangeness， or indecency. The inference constancy suggested is， that laws are the creatures of climate， local situation， accident， or imposture —— the fruit of any causes except those which appear to operate with tolerable constancy. Montesquieu seems， in fact， to have looked on the nature of man as entirely plastic， as passively reproducing the impressions， and submitting implicitly to the impulses， which it receives from without. And here no doubt lies the error which vitiates his system as a system. He greatly underrates the stability of human nature. He pays little or no regard to the inherited qualities of the race， those qualities which each generation receives from its predecessors， and transmits but slightly altered to the generation which follows it. It is quite true， indeed， that no complete account can be given of social phenomena， and consequently of laws， till due allowance has been made for those modifying causes which are noticed in the Esprit des Lois； but their number and their force appear to have been overestimated by Montesquieu. Many of the anomalies which he parades have since been shown to rest on false report or erroneous construction， and of those which remain not a few prove the permanence rather than the variableness of maw''s nature， since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had effect. The truth is that the stable part of our mental， moral， and physical constitution is the largest part of it， and the resistance it opposes to change is such that， though the variations of human society in a portion of the world are plain enough， they are neither so rapid nor so extensive that their amount， character， and general direction cannot be ascertained. An approximation to truth may be all that is attainable with our present knowledge， but there is no reason for thinking that is so remote， or （what is the same thing） that it requires so much future correction， as to be entirely useless and uninstructive.

　　The other theory which has been adverted to is the historical theory of Bentham. This theory which is obscurely （and， it might even be said， timidly） propounded in several parts of Bentham''s works is quite distinct from that analysis of the conception of law which he commenced in the “Fragment on Government，” and which was more recently completed by Mr John Austin. The resolution of a law into a command of a particular nature， imposed under special conditions， does not affect to do more than protect us against a difficulty —— a most formidable one certainly —— of language. The whole question remains open as to the motives of societies in imposing. these commands on themselves， as to the connexion of these commands with each other， and the nature of their dependence on those which preceded them， and which they have superseded. Bentham suggests the answer that societies modify， and have always modified， their laws according to modifications of their views of general expediency. It is difficult to say that this proposition is false， but it certainly appears to be unfruitful. For that which seems expedient to a society， or rather to the governing part of it， when it alters a rule of law is surely the same thing as the object， whatever it may be， which it has in view when it makes the change. Expediency and the greatest good are nothing more than different names for the impulse which prompts the modification； and when we lay down expediency as the rule of change in law or opinion， all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place.

　　There is such wide-spread dissatisfaction with existing theories of jurisprudence， and so general a conviction that they do not really solve the questions they pretend to dispose of， as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. And indeed there is one remarkable omission with which all these speculations are chargeable， except perhaps those of Montesquieu. They take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. Their originators carefully observed the institutions of their own age and civilisation， and those of other ages and civilisations with which they had some degree of intellectual sympathy， but， when they turned their attention to archaic states of society which exhibited much superficial difference from their own， they uniformly ceased to observe and began guessing. The mistake which they committed is therefore analogous to the error of one who， in investigating the laws of the material universe， should commence by contemplating the existing physical world as a whole， instead of beginning with the particles which are its simplest ingredients. One does not certainly see why such a scientific solecism should be more defensible in jurisprudence than in any other region of thought. It would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condition. In other words， if we followed the course usual in such inquiries， we should penetrate as far up as we could in the history of primitive societies. The phenomena which early societies present us with are not easy at first to understand， but the difficulty of grappling with them bears no