Natural History of Law

8/3/2019 Natural History of Law

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Natural Historyof LawInaugural Lecture

DELIVERED BYE. G. DE MONTMORENCY

Of PeterhousCy Cambridgeand of the Middle Temple^ Barrister at LawQuain Professor of Comparative Law

in the University of London

c/f/ University College^ Gower StreetV^vemher 24, 1920

HUMPHREY MILFORDOXFORD UNIVERSITY PRESSIGH NEW YORK


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rhe Natural Historyof LawInaugural Lecture

DELIVERED BY

J. E. G. DE MONTMORENCYOf Peterhouse, Cambridge

and of the Middle Temple ^ Barrister at LawQuain Professor of Comparative Law

in the University of London

zAt University College^ Gower Streett}{ovember 24, 1920

HUMPHREY MILFORDOXFORD UNIVERSrrY PRESSLONDON EDINBURGH GLASGOW NEW YORKTORONTO MELBOURNE CAPE TOWN BOMBAY

1921


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X>384.3

The NaturalHistoryof Law

Inaugural LectureDELIVERED BY

J. E. G. DE MONTMORENCYOf Peterhousey Cambridgeand of the Middle Temple^ Barrister at Law

Quain Professor of Comparative Lawin the University of London

zAt University College^ Gower StreetCh(ovemher 24, 1920

\sa& 9 I.

HUMPHREY MILFORDOXFORD UNIVERSITY PRESS^LONDON EDINBURGH GLASGOW NEW YORKTORONTO MELBOURNE CAPE TOWN BOMBAY

1921


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^'

vj.i;(:/

PRINTED IN ENGLANDAT THE OXFORD UNIVERSITY PRESS

BY FREDERICK HALL


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4 THE NATURAL HISTORY OF LAWfar-off hope that it may be possible some day for someone to formulate the principles which underlie theevolution of human law and custom. These principlesseem to be implicit in the manifestations of humanconsciousness, as the principles formulated by Newtonand Mendel are implicit in the manifestations of inor-ganic and organic matter, principles only to be detectedthrough patient investigation, by the comparative method,of innumerable and correctly recorded customs and lawsfrom all parts of the world. The formulation of suchprinciples may be near at hand or may be many decadesaway. It is not the business of a plain investigator totrouble about that. He thatbelieveth shall not make haste.Yet it is more than useful to have such a goal in viewand to feel that perhaps some day the enormous laboursof men in the fields of sociology and customary lawduring the past two centuries and longer may, by theadvent of a Newton or a Mendel, suddenly becomeeffective, and, revealing the guiding principles of organ-ized human life, make possible a better world.That this is not likely to happen in our generation

does not trouble me at all. To have the hope in viewis enough. That hope is an inspiration which enablesthe mind to look forth without despair upon the vastocean of research, so largely uncharted, unlit, a wasteof twilight waters filled with moving shadows. It isnot only an inspiration to the individual, it is a callto conjoint effort. Something of the spirit of a newRenaissance should be with us. There will be nosolitary workers, no competitive scholars greedy forfame, jealous of each other. There will be, there are,collaborative Schools of Research bringing graduallyinto subjection the customary law of our day and ofpast days throughout the world and testing it withthat comparative method which is a prime instrument


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THE NATURAL HISTORY OF LAW 5of scientific progress. It is the clear duty of any pro-fessor of Comparative Law to become, if possible, theorganizer of a School of Research, itself perhaps thenucleus of a great centralized school of law.Law as the subject of scientific study appears to bepassing into a new phase which has been in consciouspreparation for a full century. Human law has itselfbecome the subject of law in the estimation of thescientific mind. It is, almost beyond doubt, the outwardmanifestation of perdurable forces. Professor Vinogra-doff has declared^ that one of the objects of thecomparative study of law is to aim * at discovering theprinciples regulating the development of legal systems,with a view to explain the origin of institutions and tostudy the conditions of their life '. The study of theevolution of law, he points out, must be both historicaland comparative, since evolution involves the idea ofsequence while the basis of any scientific induction isdependent on the comparison of kindred processes.Indeed, it is plain that the doctrine of relativity isessential to any advance. No doubt the comparativeprocess is very old, but it has only become effective inthe light of the doctrine of organic growth or evolution.This conception was working in pre-Darwinian days.David Hume, in his famous Dialogues concerningNatural Religion^ based ail his thinking on the inevit-able orderliness of the inorganic world, and indeed hepremised such a condition as the basis of any thinkingat all about the processes of the natural universe. Yetit may be said that the argument from Design for theexistence of a Supreme Being, so confidently adoptedin the days before Darwin set forth his doctrine ofNatural Selection, received, to say the least, a severe

^ Encyclopaedia Britannica^ nth ed., vol. xv, p. 580, art.Jurisprudence^ Comparative*


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6 THE NATURAL HISTORY OF LAWshock in the elaboration of that doctrine and, thoughthe principle of essential orderliness was extended byMendel from the inorganic to the organic world, yet forsome thinkers this orderliness in both spheres seemed tobe nothing more than mechanical phenomena with nonecessary relation to a Creative Thinker or Force..Mr. Arthur Balfour in his Gifford lectures, deliveredat the University of Glasgow in January and February1914, developed a line of thought which presented theargument for Design from a new point of view, and formany minds rehabilitated this argument by showing thatthe mechanical account of the universe depends not onlyon the assumption of an infinitely improbable accidentbut makes no provision for creative force, and thatthe theory of Natural Selection in no way explainsthe human values which are the unexpected productof the essential orderliness of inorganic and organicphenomena. Mr. Balfour provides an argument fromValue to Design. If Design be absent, the value is lostofour most valuable beliefs and their associated emotions.He shows that Design ' is demanded by all that we deemmost valuable in life : by beauty, by morals, by scientifictruth : and that it is design far deeper in purpose, far richerin significance, than any which could be inferred fromthe most ingenious and elaborate adjustments displayedby organic life '. That is Mr. Balfour's view and theme.

I do not in any way apologize for introducing thistheme, this reference to Natural Religion, since it ispertinent to the subject which I am considering and isitself one of the great subjects of the ComparativeMethod. Indeed any student of customary law is awarethat it is impossible to divorce the Natural History ofLaw from the History of Natural Religion. It isevident, if Mr. Balfour's closely reasoned argument infavour of a doctrine of Design based on the emergence


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THE NATURAL HISTORY OF LAW 7of human values holds the field, that the extension ofthe principle of orderliness from the organic to the socialworld, as it was extended from the inorganic to theorganic, is a matter of the first importance, since it is inthe evolution of human society, in the processes of thenatural history of human law, that we see, in all theirwonderful richness, the evolution of human values.

It appears to me impossible to escape from whatMr. Balfour calls the ' theistic setting ' of things, and ifI adopt his view as stated in the last paragraph of hiswork on Theism and Humanism^ I seem to find a keyto the apparently heterogeneous phenomena with whichI have been faced in perusing some of the almost infinitevariety of customs and laws that exist in what I maycall, with a sense of the imperfection of the term, thenon-Aryan world.Mr. Balfour's view is that God

is Himself the condition of scientific knowledge. If hebe excluded from the causal series which producesbeliefs, the cognitive series which justifies them iscorrupted at the root. And as it is only in a theisticsetting that beauty can retain its deepest meaning, andlove its brightest lustre, so these great truths of aestheticsand ethics are but half-truths, isolated and imperfect,unless we add to them yet a third. We must hold thatreason and the works of reason have their source inGod; that from Him they draw their inspiration; andthat if they repudiate their origin, by this very act theyproclaim their own insufficiency.Now if we adopt Mr. Balfour's view as to the neces-sary outlook of man in his present stage of development,if we keep in mind the history of natural religion amongtribal peoples, and if we also hold that some principle oforderliness underHes the evolution of the social world,then it is not impossible to hope for the scientificformulation of that principle as a result of the compara-tive study of law.


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8 THE NATURAL HISTORY OF LAWIf it ever prove possible to enunciate, by the method

which has already formulated invariable laws governingthe relations of matter and the processes of growth,invariable laws lying behind and governing the ap-parently heterogeneous religious, social, and politicalrelations of man, then not only have we secured apowerful ally in promoting the argument from Designfor the existence of a Conscious Thinking Force at theheart of things (a matter with which I am not directlyconcerned), but in formulating these laws we secure themeans to enlarge human values in a measure hithertounknown to our human race.The significance of the historical method in the study

of law is not the least fruit of the Renaissance, and it hassome relevance to the above position to which I mustdraw attention before attempting further to developthat position. As early as 1539, Aymarus Rivalliusissued the first known history of the Civil Law, a workof importance which was supplemented by the vastlabours of Jacques Cujas (1522-1590), who placedRoman Law on a new footing and brought it intorelation with the laws which it was destined to affect.In these two jurists of the Renaissance we see thehistorical and comparative method operating together ata moment when Andrea Alciati had already given newlife and literary form to the study of jurisprudence.A chain of eager workers, ending with Leon-6tiennePutter (1725-1807), William Blackstone (1723-1780),Gustave Hugo (1766-1844), and Friedrich Karl vonSavigny (i779-1861), the first great master of thehistorical method in law, placed the historical andphilosophical study of law on a firm basis. For themoment I am concerned with Savigny, turning toBlackstone later, since Savigny enunciated for all timethat principle of continuity in law which is vital


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THE NATURAL HISTORY OF LAWin any theory of the nature or origin of law. Heshowed the world that law itself is subject to law, thatit is no arbitrary expression of the will of the law-giverbut is itself a thing obedient to a cosmic process. Toshow that law is itself the expression of a juristic processthat runs through the ages was in itself an achievementof the highest order ; but to go on to trace, as Savignytraced, the natural history of law, to exhibit its organicgrowth as a living thing, evolving with the evolution ofraces and tongues and kingdoms, was a still greatertriumph. In his work entitled The Vocation of our Agefor Legislation and JurisprudencCy which he issued in1814 as a protest against the new code system of law,he declares that the apparent need for codes is due to*an immense mass of juridical notions and theories'which has never been brought under control. No codecould, however, destroy this inherited wealth. Hefollows Hegel in declaring thatit is impossible to annihilate the impressions and modesof thought of the jurists now livingimpossible tochange completely the nature of existing legal relations ;and on this two-fold impossibility rests the indissolubleorganic connexion of generations and ages; betweenwhich, development only, not absolute-end and absolute-beginning, is conceivable.Here, as early as 1814, the doctrine of legal evolution

is laid down in no doubting spirit. But Savigny goesfarther than a mere enunciation of this doctrine or law.He declares that we must conquer the mass of juridicalmaterial, 'obtain the mastery over it by a thoroughgrounding in history, and thus appropriate to ourselvesthe whole intellectual wealth of preceding generations '.Only through history, he says, * can a living connexionwith the primitive state of the people be kept up ; andthe loss of this connexion must take away from everypeople the best part of its spiritual life'. This was aA 3


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lo THE NATURAL HISTORY OF LAWbold utterance, but the claim that the spiritual life inevery people is transmitted by its laws and socialorganization from age to age up from the primitive stageof man has been more and more justified as the studyof the natural history of law has proceeded. Savignyis, moreover, not satisfied with laying down principlesand setting up ideals : he was a practical lawyer andindicated a practical method of dealing with the massof juridical material which he had discovered inthe customs of his own land. He tells us that theobject of the strict historical method of jurisprudence * isto trace every established system to its root and thusdiscover an organic principle, whereby that which stillhas life may be separated from that which is hfeless andonly belongs to history \The ideas of Savigny are still part of the greatstimulating forces in the comparative method of legalresearch, and they are in no sense inconsistent with theconception that there are fundamental principles whichgovern the evolution of living law and living humaninstitutions. The organic principle, the discovery ofwhich he declares to be the object of the historicalmethod of jurisprudence, can only be found by thecomparative method. I am venturing to argue that thisorganic principle or process is something inherent inhuman consciousness and as invariable as the lawswhich govern the relations of matter or the processes oflife. This contention is one that I now propose toapproach more closely.The criticism by which the essential orderlinessof material phenomena is sharply divided from theconscious orderliness of human beings following rulesof conduct, custom, or the direct injunction of otherhuman beings, is based on the assumption that theprocesses observed in the various fields of the material


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THE NATURAL HISTORY OF LAW iiuniverse are inevitable, whilst the orderhness of a self-conscious being is not inevitable at all and depends onan arbitrary act of choice. The relations between theindividual parts of material groups are always theoretic-ally determinable if there are certain premisses given.The material universe is incapable of deviation froma certain orderliness, and if an apparent deviationis detected it is assumed to be due to inadequateor erroneous premisses. The scientist assumes thatthroughout space and throughout the continuance of timethe same kind of orderliness has always persisted andwill always persist in the relations of the parts of what iscalled matter. The assumption has not and cannot haveany scientific validity, but so persistent is this orderlinessthat the scientist, finding confirmation of it in successivediscoveries and finding that the assumption itself isnecessary to the advance of knowledge, accepts it with-out attempting to explain it. Most thinking personshave speculated as to the reason of this orderliness inphysical nature ; some persons regard it as a result of aninherent property of matter; others regard it as anaccident ; yet others as a necessary function of humanconsciousness ; and others again, premising a reasonableuniverse, declare that orderliness in nature is a conditionprecedent to reasonableness in the universe ; while manyor most are content to attribute orderliness and reason-ableness ahke to an External Mind closely concernedwith the affairs of the universe, a Mind which theycall God.

Different considerations arise when we considermatter as the medium of what we designate Life. Lifeis not less mysterious than the matter with which itcollaborates. Life introduces into matter a new specificorderliness which no doubt co-operates with that ofmatter, but on occasions operates in direct opposition toA4


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12 THE NATURAL HISTORY OF LAWit and is always something quite other than such merephysical orderliness. Life transforms matter and gives itnew direction and new motion. The origin of life isas unknown as, and even less probably explicable than,the origin of matter ; but whatever its origin it createsan orderliness of its own. In a certain inevitable orderthe protoplasmic germ builds up and presents this orthat living form, and each form contains within itself thepossibility of new architectonic achievements, that isto say, the possibility of producing, in due course, ininevitable order, forms ever more highly articulated,ever more various and removed from some originalstock. In accordance with some fundamental principleof order, life moves from the simple to the complex, fromforms that are hardly distinguishable from inorganiccrystals to the mammal with its marvellous brain. Thestages of this orderliness will be known one day, indeedmuch of the long road is known already, and certainlyenough is known to justify the confident premiss that (asin the case of the material relations of parts of matter)there is an orderliness of universal application through-out space and throughout time which fully explains allgenera and species from the dim beginning to thedimmer end. It is true that we cannot prove the univer-sal application of the orderliness of matter and of theorderliness of life. It is an assumption, derived bya special manifestation of life, namely by self-conscious-ness, from its observation of its environment. It is anassumption, however, that is acted upon by the lowestforms of life long before the stage of self-consciousnessis reached. The study of the earliest forms of life willshow that life not only anticipates the existence of thisorderliness but so adjusts itself as to secure the benefitof the orderliness which subconsciously it anticipates.Indeed this process of adaptation to an orderly environ-


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THE NATURAL HISTORY OF LAW 13ment is in itself part of the orderliness. The developmentoflower into more highly articulated forms of life dependsupon this adaptableness to environment. There is inlife as manifested in matter an orderliness of its ownwhich is something other than that of the evolutionof Hfe-forms, an orderliness which subserves themechanical orderliness of non-organic and organicmatter.This co-ordinating and adaptive orderliness as sub-

consciously manifested grows more and more complexas the life-form grows more complex, and at last in themammal-forms of life it emerges as a definite physicaldepartment of the hfe-forms in the shape of brain andas a definite psychological manifestation of life itself inthe shape of self-consciousness. The orderliness nowoperates both sub-consciously and consciously, but thegrowth or evolution of the life-form is more and moredominated by the conscious sense of orderhness whichis directly, and not merely subconsciously, applied to theproblems of self-development. So man emerges fromthe beast and the conscious reign of law takes the place,ever more and more, of the subconscious reign of theorderliness which we have seen operating in the relationsof both inorganic and organic matter and in the adaptationof living matter to the conditions best suited to thedevelopment of life-forms. We may say with RichardHooker that 'obedience of creatures unto the lawof nature is the stay of the whole world'. {Ecc.PolityJ I, iii (2).)

It does not, therefore, appear to be ultimately sound tospeak of the so-called

'

laws of nature'

as having nothingin common with the laws evolved by human agency forman. From a priori reasoning it appears to be probablethat there are elements in human consciousness asstable as the inherent conditions of stabiHty and perma-


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14 THE NATURAL HISTORY OF LAWnence in a non-conscious, non-vital, material structure.It is, in fact, unconvincing to argue that the * laws ' of manare not in any particular form essential to the existenceof man, while the * laws ' of nature are in that form andno other form essential to the existence of matter and areindeed an essential element of it. Such a view is, nodoubt, impressive in view of the enormous variations andthe apparent inefficiency of man-made laws. A humanlaw-giver, however wise, and however extensive hislegislative intentions, seems to legislate, in fact, forparticular cases and not for the universal guidanceof human self-consciousness. The human legislator athis highest seems to be dealing merely with special needs,seems to be aiming at the elimination of special evils.We cannot compare, it might be and is indeed oftensaid, the orderliness of physical nature which revealsitself in what are beyond doubt invariable rules of actionwith the orderliness of man which reveals itself inobedience to diverse rules of action which are apparentlyas variable as the will of the person who at any givenmoment is responsible for the formulation and enforce-ment of such human rules of conduct.We are therefore in this position : a priori there isa common basis to the

*

laws'

of nature and the'

laws'

ofman to the extent, at any rate, that there is a persistentand actual orderliness in human consciousness of thesame nature as the orderliness observed in the relationsof particles of matter ; while, on the other hand, many ofthe laws prescribed by man for the conduct of men areplainly outside the coherent reasonableness which aloneis compatible with a permanent element in human con-sciousness of the same nature as the permanent elementin material particles. In other words, it is true to saythat many human laws are outside the purview ofa universal jurisprudenceare the products of minds


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i6 THE NATURAL HISTORY OF LAWdo I overlook the necessity for concrete methods ofsecuring the administration of justice.

It is necessary to ask, not from pure theory but frompractice, illustrated by the history of law, as the con-firmation of theory, is there any element common toall systems, to every known system of human law ? Itmight be better to ask whether there is alegal system fromwhich this element is absent ? So far as our material goesit seems not possible to find a system from which thissense of obligation is absent. In every record it seemsto be present, whether we are considering the humblestinchoate customary system or the most stately product ofthe evolution of law. Through many centuries practicaljurists and judges, with their intimate and accumulatedknowledge of human nature and its needs, have detectedthis element and have unhesitatingly accepted 'thelaw of nature ', that is, of human nature. One of thefunctions of the comparative study of law and humaninstitutions is to test, from the comparison of the rawmaterial supplied by many almost elemental races inmanylands, whether this law of nature has a universal sway.

It is not proposed here to discuss the source of thosepermanent elements in matter and in consciousness.It is sufficient to be satisfied that they exist and to besatisfied, at any rate in the case of consciousness, thatthey evolve. Blackstone boldly attributes them to ' theWill of God ', and it is certainly not necessary to dissentfrom such an attribution. To whatever source weattribute the permanent elements in human conscious-ness which are responsible for the t'us naturaky we haveto look for the sanction which lies behind that law, forthe ' something about me that tells me Ft'des estservanda \to use the striking phrase of Selden. The sanction isclearly not the sanction of which Hobbes wrote andwhich Austin adopted : ' the command of him or them


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THE NATURAL HISTORY OF LAW 17that have coercive power'. The law which is obe^^edis not obeyed because the sword lies behind it. Thesanction is not the sanction of force. Force is oftenenough an administrative or secondary sanction, but itis not the primary sanction. Coercion is a weapon oflaw which law has forged, but it is not the basis of law:

It is provisionally submitted that the history of humanlaw confirms this position and reveals, whether ininchoate customs governing the relationship of man andwoman and man and man and the relationship of anindividual to a group in the most unsophisticated tribes,or in the most advanced systems of law, principles thatare as apparently invariable as the Newtonian laws ofmotion or the MendeHan laws of life. It is the businessof schools of jurists to collate the masses of historicaland juridical material available in order if possible toformulate these invariable principles with accuracy andprecision, and it is perhaps not entirely rash to attemptto indicate in provisional fashion the broad lines of thoseprinciples. It would seem that the following propositionsindicate lines on which research might work :

1. A dominant tendency of the individual man (indirect heredity from an earlier grade of being) is to striveso to regulate the group to which he belongs as to affordto the group, and therefore to the individual, a maximumof protection from its environment.

2. Within the group the relations of individuals arealways tending towards stability of conduct, and thistendency is due to an evolving principle in conscious-ness which is represented by the phrase Fides estservanda,

3. A dominant tendency of a group which has attainedsome measure of corporate life is to strive so to regulatethe sum-total of groups to which it belongs as to affordto the aggregate of groups, and therefore to itself, a maxi-mum of protection from its environment.


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i8 THE NATURAL HISTORY OF LAWInconsidering human relationshipswe have to estimate:(i) The relations of man and man ;(2) The relations of man and a group of men ;(3) The relations of groups of men ;(4) The relations of men or groups of men to an

influence or force, or influences or forces, that is or areextra-human, or apparently extra-human, the existenceof which is or are inferred from certain phenomenaassociated with the personality of man.The first and fourth forms of relations seem to emergebefore the second and third. But the four classes of

relationships seem to have existence in the very earliestdawn of history. Sexual relationship and the up-bringing of children apparently involve the existenceof the first class before anything in the nature of theconscious grouping of individuals began, though uncon-scious grouping must have begun very early in thehistory of the race for purposes of mutual protectionagainst wild beasts and for conjoint hunting of wildbeasts. Palaeolithic cave paintings seem to show us twothings in the early stages :

(i) Recognition or worship of the extra-human forcesreferred to in the fourth class, and

(ii) Conjoint hunting of wild beasts.This evidence seems confirmed by modern evidencedrawn from existing races. Thus Sir James Frazer hasshown that all the Australian, Papuan, and Polynesianraces have an intense sense of immortality, a vivid beliefin spirit life, and, in the case of the Central Australians,he shows us the exact evolution of the conception ofa

spiritual and unseen God.^ This modern evidencegoes farther and shows us the relationships referred toin classes (2) and (3). Independent hunting groups arise

^ The Belief in Immortality^ vol. i, p. 115.


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THE NATURAL HISTORY OF LAW 19and come into touch and recognize each other as some-thing other than themselves and set up well-definedrelations. It is not important here to discuss the dis-tinctions between groups that were merely huntinggroups and groups the individuals of which sprang, orclaimed to spring, from a common ancestry. Possiblythe original fortuitous hunting group merged into a groupof individuals in which blood-relationship ratified andperpetuated the original protective grouping. Howeverthat may be, the dawn (I say nothing about the primitivebeginnings) of human co-operation saw all these fourclasses of human relationships set up.The basis of all these relationships was and is mutualeffort and support, not instinctive strife. The onlypossible exception was the relations of groups, and evenhere the Australian and American evidence shows thatin many ways the groups had elements of mutual support.In all the other cases it is self-evident, the fact issupported by the cave pictures and by the practices ofexisting racesthat not strife but mutual effort andsupport was, and is, the basis of relationship. It wasnot that the age was ideal and man still uncorrupted.Probably man was more brutalthough m.any elementalraces are more civil and more moral, as we understandthese terms, than more (apparently) advanced racescertainly the times and the environment were harder.But it was the sternness of the environmentthe harsh-ness of nature, the dangers from wild beasts, the lackof knowledgethat necessarily determined the basis ofassociation. Indeed we may with a high measure ofcertainty postulate the fact that it was the environmentwhich evolved man himself as the only creature whocould capture and harness nature by virtue of associa-tion. The condition of survival was mutual effort andsupport. The woman could not rear the child without


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20 THE NATURAL HISTORY OF LAWthe active assistance of the man: the child could notgrow to manhood without the active assistance of theadult; the adult could not alone provide against theenvironment. Grouping for environmental protectivepurposes occurs in every stage of evolution from thebee-hive to the buffalo-herd, and in man it becomesconscious and creative. Hence the basis of the rela-tionship of man and man and of man and a group of menwas mutual effort and support. The conditions of suchmutual effort and support were determined by theenvironment of the individuals and the group ; as sodetermined in the long course of experience these con-ditions emerged in the shape of customs. Necessity isnot only the mother of invention, it is the inventor oflaws. Environment determines law. Adaptation to en-vironment is the condition of survival. Custom was themethod by which man adapted himself to the environ-ment. To break custom was to face death. So thatobedience to law, though it might be due immediatelyto fear of a human individual, or fear of a human law-giver, ultimately was based upon an original fear (perhapsan acquired characteristic) of becoming by this actionor that passivity unadapted to a particular environmentand therefore doomed to destruction. Obedience to lawultimately was due to fear of incapacity to grapple with anenvironment, but the fear itself was begotten by mutualeffort and support, by, in other words, what we callLove : that is to say, the recognition of the necessity toprovide against the dangers of environment sprangoriginally from the Love of Kind, the will to preserve thespecies.

^ Another law there is ', writes Hooker, ' whichtoucheth them as they are sociable parts united into onebody; a law which bindeth them each to serve untoother's good, and all to prefer the good of the wholebefore whatsoever their own particular.'


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THE NATURAL HISTORY OF LAW 21It is not altogether vain to ask how this basis of

mutual effort and support came into existence. Wehave to look at the fourth class of relationships : toinquire into the significance of the religious attitudeof early man. Now without inquiring into the basis ofthat attitude we can say this : that the attitude, whetheror not it be explicable on purely utilitarian grounds,is certainly explicable on the assumption that thereexists in relation to the whole range of sentient andnon-sentient phenomena a self-conscious Being of infinitepower, the source of the causal series. If we assume,merely for the purpose of explaining that religious attitudeof man which comes to fight in every investigation intotribal customs, the existence of such a Being, and alsofor the same purpose premise the not uncommoncustomary belief that it is His purpose to create beingsthat partake of His nature and character, we seem to bedriven to the following conclusion : that such beingscould only eventually come into existence by a long-drawn-out process of development or growth in whichabsolute free will or choice operates amid the circum-stances of evolution. A being that is to partake of thenature and character of God could not be created persaltum, for it would then lack the fundamental character-istic of the postulated GodFreedom. It would be anautomaton. The being must in a more than Hegeliansense/reefy become God-fike. That attitude is congruentwith the 'theistic setting' of things as well as withthe evolutionary processes determined by invariableprinciples residing in consciousness. At every stage ofevolution the evolving being must be free to choose andmust choose the environment by which alone evolutionalong the necessary line is possible. The choice becomesmore and more difficult as the organism becomes moreand more complex. But as the choice becomes more


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22 THE NATURAL HISTORY OF LAWdifficult the power of choice becomes more intense,more self-conscious, until at last there comes a momentwhen * mind ' is at work, when the evolving being looks* before and after ' and feels that it is part of an ordereduniverse. At that moment the sense of both worshipand law is born. It is then no longer a question ofquasi-unconscious adaptation to environment. Thesenseof the necessity of adaptation to environment has becomea ratiocinative sense. The physical hunger to reach thegoal, which, operating under freedom of choice, has ledthe organism to this point, becomes a spiritual hungerlooking everywhere for guidance, and a mental hungerdevising ways and means of progress. The spiritualhunger visualizes, in this way or that (in the CentralAustralian way, for instance), inadequate representationof some Force imagined or intuitively conceived ofas residing in the Realms of Help or the Regions ofPunishment, and that Force so represented is thebasis of Sanction in Religion. The mental hunger, indevising ways and means of successive adaptation toenvironment, looks for a sanction that shall make theways and means binding on the whole group to whichthe being belongs, and for that purpose uses the sanctionthat religion has already provided. Thus a God of infinitepower, the source of the temporal series, if once postu-lated, does explain the actual process ofevolution from theelemental germ to man and does account for the perfectlynormal emergence of both religion and law as weunderstand them. But whether we introduce thepostulate or not to explain the process, we see theprocess as an historic fact. A consciousness of Godcame into existence, and among tribal peoples gave themthe basis of sanction both in religion and law, at themoment when man became conscious that he musty if hewere to progress or even survive, adapt himself cease-


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THE NATURAL HISTORY OF LAW 23lessly to an environment which is itself ceaselesslybecoming a different environment.Hence the ultimate basis of sanction would seem

to be, not the word of a law-giver, but something thatwe may call intuitive and inseparably interwoven withthe consciousness of the law-obeyer. He obeys in theultimate analysis because the law is the expressionof his own fundamental nature. The moment that thisis not so it means either that

(i) The man or group has reached a stage when thenecessity of adaptation to environment demands a modifi-cation of the law, or

(2) That the man, or group of men, has not yetreached the stage when the particular law is themachinery that fits him or it to his or its environment, or

(3) That the man, or group of men, in the exercise offree choice, deHberately refuses to adapt himself or itselfto the only means of progress or refuses to progress oreven to survive.Now these three classes of disobedience to law in factsupply us with the theory that is exemplified in theactual working out of human society. The first classshows us law evolving as social life progresses. Itshows us man in revolt against conditions that havebecome intolerable and harmful. The whole of thehistory of freedom, the Reformation and the Renaissanceof successive ages, is taken up by this process : that firstone man, then a party of men, then whole nations awaketo the fact that the law which was intended to fit manto his environment is outgrown and that a new lawof adaptation must be fashioned. We see here theprinciple that has determined the history of constitutionallaw, of municipal law, and the underlying fact that iseven now determining the progress of international law.The second class of disobedience to law, the case where


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24 THE NATURAL HISTORY OF LAWthe man or group has not yet reached the stage whenthe particular law imposed upon him is the machineryof adaptation that is needed, is of peculiar importancefor the consideration of the legislator and the ruler ofinferior races. The moment that we consider it, we seeat once the flaw that vitiates so much of modern criminallaw. Even in societies of white men there is a per-centage of the population that belong in fact to anearlier stage of civilization, and their crimes against thelaw are often the very efforts that to them instinctivelyare right efforts to fit themselves to their environment.It is education not punishment that these classes need.With them there is no mens rea but a mens adaptivawhich belongs to an earlier period of evolution. Thatmind must be raised to the new environment. This isequally true of inferior races. To impose upon suchraces the laws and morals of a higher race inevitablyleads to the disintegration of all law and all morals.Only by education can the process of evolution behastened, by education as unforced as it is wise. Thelast class, the man or group that in the exercise of freewill deliberately rejects adaptation to environment, isthe only class that really possesses the mens rea. Thisis the criminal class, and it is the business of legislationto ascertain and segregate this class.We thus see that the basis of sanction in law, ifascertained according to the above analysis, does in factlead by pure a priori rea,^oning to the whole network ofquestions in municipal and international law that havearisen during the last century, and more particularly inthe last quarter of a century, and lays down principlesthat, in theory at least, are capable of solving thoseproblems. It is suggested that in this fact, in theapproach through pure theory to actualities of the pre-sent time, there Hes a confirmation ofthe theoryadvanced.


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THE NATURAL HISTORY OF LAW 25With such a tentative and provisional, but seemingly

not unreasonable, conception in mind it is possible toturn to the apparent welter of customary law and itsinfinite variations in different regions of the earth witha mind that is not entirely afraid of its material. Savignybade us to conquer this material. He had no doubtthat it is governed by an organic law of growth, andconquest lies in the discovery of this law. To do sothe worker must have some guiding principle at theback of his reading and thinking. It is not necessarythat the principle should be absolutely true. Progresscomes by trial and failure. But some principle,some approximation to truth, must be the instrumentof reference as the processes, laborious, tiresome, end-less, of the comparative method go on. But such aprovisional principle, such an instrument of reference,must not become a hide-bound theory to which theinvestigator fits his facts. Into that error some of thevery elect have fallen, never to rise again. Any theory,any alleged principle, must meet the facts. If it cannot,however attractive, or even noble, it may seem, itmust disappear. The theory was made from and forthe facts. The facts do not exist for the sake of thetheory, and the investigator who fits his facts to theProcrustean bed of his theory, in any region of scientificthought, courts and deserves disaster. The varioustheories that have been advanced to account for thephenomena of tribal law have always to be tested insuch a way, and the investigator who ties himself downto some special theory of the universal order of theevolution of institutions, such, let us say, as a theorythat a Matriarchal or Mother-Right stage necessarilyprecedes a Patriarchal stage, is adopting not only a daringbut an unscientific course.For my own part, in so far as I have any theory at all


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26 THE NATURAL HISTORY OF LAWas to the progressive order of human customary institu-tions and law, I should say, from the material withwhich I am so far conversant, that the character of thedevelopment is fundamentally a function of the environ-ment, though I am not prepared to deny that there areinternal factors due to special characteristics of specialraces which may also affect the development, and I amnot prepared to assert or deny that these specialcharacteristics, if they exist, are inherited characteristics,springing from environment. I think, however, that itis to environment in the main to which we have to lookfor the explanation of the almost infinite varieties ofcustoms among tribal peoples, though I am entirely ofthe opinion of Professor Vinogradoff that the explana-tion of similarities and differences in customs andinstitutions must take into account immigrant loans,common origins, consecutive stages of evolution, andthe psychological unity of human beings. Yet environ-ment is the dominant and moulding force. I shouldnot expect to find any common basis in some remoteperiod for all human institutions. The human beingstriving to fit himself and his kind to a particular en-vironment must produce results markedly differentiatedby different environments. On the other hand, I shouldexpect to find in the case of a race which has spreadout in many directions from a restricted area modifi-cations of the most diverse kinds produced by greatvariations of environment, but nevertheless modifications

I which do not obscure dominant characteristics acquiredin the original restricted area.This method of tracing back by the comparative

method diverse races to a common source has been usedin different forms for the greater part of a century. TheIndo-European race, for instance, has stimulated effortsin many directions. Jacob Grimm used the method to


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Natural History of Law

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