This is not to say that the Historical method is a mere record of accidents. On the contrary it endeavours to eliminate, or at least to reduce to due proportions, that element of accident which results from the personal fancies and arbitrary volition of individual lawgivers. It conceives of national character and the circumstances of national growth as creative forces, whereof law is the efflux and expression, being itself a living organism, which in its turn helps to shape the mind of the people. Accordingly it shows that each nation, rather than individual men, however potent, is, through what the Germans call its Legal Consciousness (Rechtsbewusstsein) the maker and moulder of its law.

A second merit of this method is that of indicating that the conceptions and rules which prevail at any given time, however obviously reasonable and useful they may appear to the generation now living, will not always appear so, but must undergo the same change and decay which previous rules have experienced. It teaches us never to condemn the past because it is not the present, nor ever to forget when we praise the present that it too will some day be the past. This is one of those truisms which men are always forgetting to apply, and of which legislators in particular need to be often reminded.

The risk principally incidental to the Historical method is, that it is apt to lapse, either into mere antiquarianism on the one side, or into general political and social history on the other. Some charge it with retarding improvement by justifying the past. Those who oppose reforms have often so abused it: just as those abuse it who when they palliate crimes by dwelling on the so-called conditions of the age' attenuate all moral distinctions. In judging Phalaris,' a modern lecturer is reported to have said, 'we must not forget that the moral standard of Phalaris' time is not that of our own.' Nevertheless History, when she explains and is supposed to justify the past, justifies it as the past, and must

not be deemed to defend it for the purposes of the present.

It is, however, a weak point in the Historical method as applied to the science or philosophy of law that it is more applicable to the law of any particular country than to the theory of law in general, for the details of legal history vary so much in different countries that immense knowledge and unusual architectonic power are needed to combine their general results for the purposes of a comprehensive theory. Indeed, I doubt if any man of the requisite capacity (unless perhaps Rudolf von Ihering) has yet produced a treatise on jurisprudence or the philosophy of law by means of this method. The thing, however, may be done, and so will doubtless be done some day. Everything happens at last.

Lastly, there is the so-called Comparative Method, which is the youngest of the four. It is concerned with space as the Historical method is with time. It collects, examines, collates, the notions, doctrines, rules, and institutions which are found in every developed legal system, or at least in most systems, notes the points in which they agree or differ, and seeks thereby to construct a system which shall be Natural because it embodies what men otherwise unlike have agreed in feeling to be essential, Philosophical because it gets below words and names and discovers identity of substance under diversity of description, and Serviceable, because it shows by what particular means the ends which all (or most) systems pursue have been best attained. The process is something like that which a Roman Praetor might have followed in constructing the general or theoretical part of his ius gentium 1. If indeed we are to suppose the Praetor ever really did study the laws of the various neighbours of Rome, he was one of the founders of this method, though to be sure the Roman commissioners, who are said to have

See Essay XI, p. 571 sqq.

been sent out to examine the laws of other countries before the Decemviral legislation, preceded him in this attempt.

The comparative science of jurisprudence appears, however, in two forms. One of these must, like the science of comparative grammar, crave the aid of history, for the study of the differences between two systems becomes much more profitable when it is seen how the differences arose, and this can be explained only by social and political history. This form may be deemed an extension of the historical method, which it resembles in helping us to disengage what is local or accidental or transient in legal doctrine from what is general, essential, and permanent, and in thereby affording some security against a narrow or superficial view. It is really an historical study of law in general; and, like history, it is not directed to practical ends.

The other form, though it cannot dispense with the aid of history, because the differences between the laws of different countries are not explicable without a knowledge of their sources in the past, has a narrower range in time, being directed to contemporary phenomena. It has moreover a palpably practical aim. It sets out by ascertaining and examining the rules actually in force in modern civilized countries, and proceeds to show by what means these rules deal with problems substantially the same in those countries. For example, it takes such a topic as the liability of an employer for the acts of his servant, or the structure and management of incorporated companies, compares the enactments it finds in France, in Germany, in the British Colonies and in the States of the American Union, points out their differences, and seeks to determine which mode of handling the difficulties of the subject is the simplest and most likely to work well in practice. The next step would be to test each legislative experiment by the results it has secured in each country. Here, however, the task becomes more difficult, and requires qualities in the in

vestigator which are not altogether those needed by the jurist.

What the Comparative method does for legal training and legal theory it does in its first mentioned and historical form. Ample as the materials may appear, they are really somewhat scanty, because there have been in the world not many distinct types of legal system or doctrine, and few of these have reached a high development. Of the ancient and long since departed systems little is left, and that little not very helpful for this particular purpose. There are some fragments of old Celtic law. from Ireland, with larger fragments of old Teutonic law chiefly from Iceland, Norway, Friesland, and the Carolingian Empire, some old Slavonic land and family customs, besides what may be gleaned from the ancient books of India, and what has recently been discovered in Egypt, in the clay tablets of Babylon, and in inscriptions among the ruins of Greek cities. Of the modern systems, on the other hand, there are besides those of Teutonic origin, practically only three worth mentioning: Hindu law, which has been fully developed only in two or three directions; Muhamadan law, which is deficient on some of the sides we should deem the most important; and the Roman law, which now covers all those parts of the civilized world that are not covered by English law, including the continent of Europe and the colonies of European nations (some British colonies as well as French, Dutch, German, and Portuguese) except those which lie in the temperate parts of North America and in Australasia. So far, therefore, as the doctrines of law in its civilized and developed forms, suited to a progressive modern nation, are concerned, the comparative method is virtually restricted to a comparison of English and Roman conceptions and rules. And the fundamental ideas and principles of English law itself have been in some departments so much affected by Roman law that they can hardly be treated as independent material for comparative study.

It is when we leave the field of legal philosophy and jurisprudence in general for the field of particulars and details that the practical value of the Comparative method begins. An examination of the various ways. in which economic and social problems have been dealt with in recent times, and in which commerce has been regulated and crime checked, is in the highest degree interesting and useful. But that is not quite the kind of legal study which we are here primarily engaged in considering. No doubt the way in which questions of liability and responsibility and negligence, to take a familiar example, are dealt with in the laws of different countries, does throw light upon general juristic conceptions and upon the lines which Courts ought to follow in developing these difficult branches of any concrete system. But on the whole, it is rather to the province of legislation than to that of law that this part of comparative jurisprudence belongs; and, as has been already observed, the utility for practical guidance of the results which an examination of the legislation of various civilized states supplies is somewhat reduced by the difficulty of determining how much of those results, be they good or evil, is in each case attributable to legal enactments, how much to the social and economic environment in which the enactments work.

If we are to attempt to estimate the respective worth of these four methods for the creation of a theory or philosophy or science of law, we must begin by settling for whom such a science is designed and to whom it will be useful.

Three kinds of persons will primarily and directly profit by having such a science built up on the best lines, viz. the teachers and students of law, the practitioners of law, including both advocates and judges, and the makers of law, i.c. legislators and draftsmen. Legislators, however, whether monarchs or members of legislative assemblies, have in modern countries seldom sought to acquire any specifically legal knowledge,