Chapter II: Part 2

But there is one great doctrine of reasonableness which does reduce it to a question of means and ends, and that is, the doctrine that everything else is a means to pleasure, whether that of the agent or that of all sentient beings. I do not want to discuss Hedonism psychologically just now, I only want to use it as an illustration of one way in which intelligence may be alleged to control action. The ultimate theory would then be that this uniform purpose, pleasure, is a natural or obvious, or, so to speak, a _given_ purpose, and that all definite action is or has been prescribed by the intelligence dealing with matter of fact, as a means to the realisation of this given purpose.

Then reasonable action would mean what our reasoning and perceptive powers, dealing with matters of fact, pronounce to make for pleasure, and unreasonable action would be all that does not. Here, though I wish to avoid hackneyed criticism, I must note that there is a certain difficulty in getting across from the idea of one’s own pleasure to that of other people’s pleasure as a natural purpose, and sometimes we find the contention that any person’s pleasure is a _reasonable purpose_ to any person, which, like several indications before, takes us out of the connection between reason and the mere calculation of means to an end.

Apart from this, I have, for our object, only to refer back to the suspicion with which we regarded these distinctions between means, ends, and consequences, in the presented idea of an action. The burden of proof lies on those who limit the aspects in and for which activities or results can be or ought to be desired. If we say that the whole complex of our moral life is a means to a partial though necessary incident in it, it seems to me that we are putting the cart before the horse. If you could really say “moral life is the means, and pleasure is the end” then it would follow that, should calculation tell you that moral life was not the most effectual means, you would not prefer it. Now this old argument may be pronounced unfair on the ground that it puts an impossible case; just like the counter-question which is asked by the opposite side, “If morality led only to increased pain, would you prefer it then?” Still, if these two questions together bring out the fact that pleasure is an incident of a whole complex of functions and activities which we cannot suppose to be separated from it, we do get this much result, that there is no firm ground for distinguishing part of the complex as the end from the rest as the means. And it seems clear, also, that we differentiate pleasures _in kind_ according to the activities which they accompany, just as we have constantly found that the so-called means differentiates and qualifies the so-called purpose.

Thus I do not think that it is possible to represent the reasonableness of action as consisting in its guidance by right calculation of the means to an end, not even to the alleged simple and universal end of pleasure. At the same time, this view has one essential element of truth, that is the recognition that a positive impulse or claim can only be combated or defeated by a positive impulse or claim. The view goes so far indeed as to say that one form of a general impulse can only be combated by another form of that same impulse through the discrepancy of the alternative means to its attainment. However this may be, so much does seem clear, viz. that reasonableness cannot be, as popular language tends to make it, something purely negative and prohibitive. Its negative aspect must be secondary, and according to the suggestions furnished by the notions we have been examining, must arise out of a discrepancy between two sets of means to the same acknowledged or accepted end. This I think is solid ground, so far that we are bound to deduce the negative side of reasonableness from a positive nature, whether a general relation to one and the same purpose, or relations to different purposes. We have learnt, on the other hand, to distrust the absolute distinction between means and end.

2. Now I turn for a moment to what I may describe as _maxims_ of reasonableness. I will not call them “A priori principles,” because such an expression raises a question about the nature of experience which does not concern the point before us. But I do treat them as characteristic of a view which explains reasonableness rather by rules than by purposes; and it seems to follow from this that the rule must be alleged to be self-evident, because if they were derivative, they would most naturally be derivative from purposes. But in the history of speculation of course the same principle may be recommended at one time as analogous to an axiom of the reasoning power, and at another time as involved in the purposes which are recognised as good. Even the same writer may combine both views.

Now if such principles are supported as constituting the reasonableness of action, either because connected with the predominance of the speculative intelligence, or because of an analogy between such principles and any axioms acceptable to the speculative intelligence, I believe that this support of them is due to a sheer confusion.

I take two only, as illustrations, one of each type I have mentioned.

Plato, it seems to me, constantly fails to distinguish between the reasonableness of conduct, and the reasonableness of abstract reasoning, that is, of the scientific intellect. To the moral philosopher, scientific or theoretical interest and activity are one interest and activity among others; and the reasonableness of activity is not insured by pursuing an activity of reasonableness. It _may_ be quite unreasonable, in the moral sense, to pursue abstract reasoning as a vocation in life. When we say that in every man the reason should be uppermost, we do not mean that every man should devote himself to intellectual pursuits. Plato knows this, as, in a sense, he knows everything; but he uses all arguments for his purpose, and among others I think he allows it to be supposed that occupation with intellectual matter is in a moral sense a predominance of the reason. I may instance his attempt to prove that intellectual pleasures are the pleasantest, more especially with reference to his aim in making the attempt, which is, I suppose, to recommend intellectual occupation as pre-eminently reasonable in the moral sense. To this I say No; if and in as far as the inference is meant to rest upon an identification of scientific with moral reasonableness, I think it a sheer confusion. It is like saying that because a doctor has to do with the promotion of health, therefore it is a healthy profession to be a doctor. But Plato’s argument shows how strongly this idea appealed to him, because he even recommends intellectual pleasures on the score of their sheer pleasantness, implying not only that intellectual occupation is reasonableness in the moral sense, but that intellectual occupation, even when chosen by way of self-indulgence, is still reasonableness in the moral sense. Of course the matter is complicated by a substantive connection, the degree of which is matter of opinion, between the two things, like that between being a physician and leading a healthy life. Intellectual exercise and ambition have a definite influence on certain capacities concerned in the reasonable will. But it cannot be made out, that a tendency to the more intellectual occupations is in itself a tendency to moral reasonableness. Moral reasonableness must be a general characteristic of moral action, not guaranteed by the special content of any form of activity.

Next I have to discuss a principle which is advocated as an expression of the morally reasonable, on the ground of having a sort of analogy to several maxims or axioms of the intellectual world. It used to be said that justice is like a square; or that the rightness of an action consists in its conformity to certain eternal proportions impressed upon the world by God. I take one more modern form of these principles as a type of them all. Bentham said, “One is only to count for one,” and it is a mere amplification of this when Mr. Sidgwick maintains, if I understand him, that it is objectively reasonable not to prefer my own interest or pleasure simply because it is my own, to that of some one else. This principle seems to me a commendable expression of moral judgment, and I do not think that it is needless or empty. There is a famous passage in Middlemarch where the heroine, in a matter which acutely touches her own feelings, thinks to herself, “Now how should I act if I could compel my own pain to be silent, and merely consider what is best for the lives of all the persons concerned in the situation?” That I suppose is a concrete rendering of what this principle means.

But if we look closer, we see its weak side. It is negative, and consequently abstract. You are not to heed your own feelings unless they are such that you would heed them if they were some one’s else in the same circumstances. This amounts to no more than saying, “We believe there is always, under all circumstances, a right course.” It is strictly parallel to the theoretical principles of Uniformity or Causation. “We believe that there is an explanation for everything; that nothing changes without some reason.” These are useful maxims if they make us look for the explanation, and so the other is a useful maxim, if it makes us look for the right course. But it really falls between two stools. It is not capable, as intellectual theorems are, of accurate development and application by measurement and analysis. Yet on the other hand it makes no special appeal to any special content, or tendency of reasonableness embodied in definite ends. It is neither theoretically fertile, nor is it a description of a practical influence.

It is a well-known phenomenon that those who suggest maxims or moral axioms of this kind as defining moral reasonableness are apt to be reduced to assuming a particular impulse, told off to assist or obey the reason. Such are Plato’s “Spirited” element in the soul, Kant’s reverence, Mr. Sidgwick’s general desire to do what is reasonable. This seems to me to be creating a rule which has no positive content, and therefore has not the character of a human purpose, and then imagining an impulse to obey it the nature of which is not accounted for in reference to any plan of life, but must simply be propounded as an isolated fact.

It kept suggesting itself to us above that reasonableness could not be thoroughly explained on the basis of a distinction between means and end, because actual ends are not simple and uniform, but are obviously qualified by the so-called means, or context of circumstance. We agreed, however, that what is reasonable must be so in virtue of a positive content, whether as means or perhaps as end, and that its negative or prohibitive aspect must arise from the conflict of two such positive contents.

We have in this section looked at two interpretations of moral reasonableness apparently suggested by analogies with intellectual reasonings or principles, and we could not deny that each of them had a certain appearance of truth, but one seemed to confuse the content with the form, the other to consist of a form without any content.

3. It suggests itself therefore that moral reasonableness must be a characteristic which we ascribe to purposes of action. Then we get a variety of positive content, without relying on the distinction between means and end; while the abstract principles which we feel to be reasonable fall into their right place as very general descriptions of a purpose or scheme of life which can be called reasonable.

But the idea of a reasonable purpose requires explanation.

First, it is irreconcilable with abstract Hedonism. You cannot have any relations within a single and uniform purpose, and reason always involves relations.

Secondly, it is not the most intellectual purpose, the purpose that has most to do with reasoning. I have tried to explain this above.

Thirdly, it _is_ such a life or purpose as possesses a self-consistent relation of the parts to the whole. This is the general characteristic of any reasonable totality _qua_ reasonable, and it is this which forms the general characteristic of reasonable purpose _qua_ reasonable.

Then what is the meaning of the self-consistent relation of parts to the whole in the case of a human scheme of life?

We cannot demand that our specific purposes should be related consciously to the purpose of the universe; because the universe as a whole is the object of theoretical knowledge only, and this does not furnish us with the idea of a concrete purpose at all. It seems then that the whole, by consistency with which human purpose is or is not reasonable, must be the whole of existing human purpose, taken of course as moving in a certain direction, owing to the modification continually introduced through the progressive realisation of purposes. I do not see that more than this can be said without entering upon the analysis of the actual structure of the moral world, of society and of history. What is important seems to me to be that we cannot construct the reasonable world of morality from a theoretical view of men in general and of nature. We have to take it as it is, and are then perhaps able to show that it is an organised movement in the direction of self-consistency of purpose.

Is there not more than one kind or type of self-consistency possible, as when self-indulgence is restricted simply within the bounds of health and decency? This is the question whether consistency demands completeness, i. e. whether mere omission destroys consistency. It has often been discussed, and I suppose the general answer is that _assuming the unity of the total moral movement_, any elements omitted in any portion of the movement must ultimately have their revenge by producing disturbance.

Then if we ask what after all is the relation of the theoretical reason to the reasonable will or moral reason, the only answer seems to be that the moral reason, in the individual or in the race, is the body of intellectual ideas which are in fact predominant as purposes in either, having become predominant by the power they have shown of crushing out or adjusting to themselves the active associations of all other ideas. And the power is what might be described as logical power; that is to say it depends on the range and depth which enables one idea to include in itself as in a system a great variety of minor purposes.

The intellect as such is for morality in the first instance simply the medium in which the moral world or content of the moral world exists; and which therefore conveys to that content its own peculiar character of system and totality. Then, further, in theoretical reflection on the moral world, I imagine that we notice this predominance of ideas which have organising power, and we frame to express this predominance such predicates as important, right, good. And the whole of these judgments we must call wisdom as opposed to knowledge. But I cannot myself see how these or any judgments can be judgments of the moral reason. They seem to me to be, as judgments, necessarily judgments of the theoretic reason dealing with the facts of the moral world. But then there is the further complication that these judgments themselves, forming the content of intellectual ideas, may, if they have organising power, become actively predominant, and then again they will form a portion of the actual moral world as general ideas or clues, inciting to the active search for concrete ideas which are concordant with them. In this case they are not acting _as_ judgments, which are true and false, but only as dominant contents. It is one thing to judge that there is a right in the moral world, and another thing to be mastered by the right in one’s own mind.

If I am asked, what I mean by the predominance of dominant ideas, which I allege to form the content of the reasonable will, I start from the position that every idea would produce action if unchecked, simply by suggestions which through associative reproductions call up the necessary movement. Desire may, I believe, or may not intervene, as a state of tension between a pain of want and a pleasure produced by an idea. All that is essential, it appears to me, is this idea which can suggest an action.

In the formed life of a civilised man the organising ideas have long asserted their predominant power, and in every moment crush out countless intruders each of which has in itself suggestions quite capable of leading to action. In childhood or insanity the yielding to every suggestion is a mark of what is called absence or loss of will; that is, not the loss of a _general_ power to check minor suggestions, but of perfectly _definite_ habitual purposes which check them as a matter of course.

This view sounds no doubt like an iron Determinism, and I am not much concerned to defend it from that imputation. After all, if we are determined by the content of our own minds, why then I suppose we determine ourselves. And trivial examples of indifferent alternatives such as “I can blow out this candle or not as I please” seem to me very poor representatives of the moral will, compared with the necessary pressure of an over-mastering idea which drives the man up to the point of saying, “This is what must be decisive with one like me, and I have no alternative.” We feel, as we say, that “we shall have to do it.” Almost all really serious action, it seems to me, is of this type. And if I have read at all correctly this lesson of the new psychology which owes its origin largely to Herbart, it is an instructive meeting of extremes, that the most analytic of psychologies should more than ever represent the individual as the incarnation of a progressive order in ideas.

B. BOSANQUET.

ETHNOLOGICAL JURISPRUDENCE.[4]

There is in the history of jurisprudence no more significant event than the foundation of the historical school by Gustav Hugo and Carl von Savigny. Jurisprudence, up to that time, was not a science, at least not a science in the modern acceptation of the term. It was an art, which the practical lawyer learned and employed in strict conformity with practical traditions, without reflecting on the reasons in virtue of which a legal norm or a social institution existed. The only part of jurisprudence of a scientific tendency was the philosophy of law. This latter branch had, since Hugo Grotius, emancipated itself from the church, but it had advanced no farther than to substitute for the will of God, to which formerly right and wrong had been traced, the principle of human nature, and to found upon the social instincts of man a system of natural law,—an ideal jurisprudential state by reference to which positive laws were tested in respect of their conformity with the ideally right and the ideally wrong. This fundamental conception of the essential character of law was only slightly modified by the substitution of the human reason for human nature. The rational systems of jurisprudence also derived the state and the law from the individuality of man, especially from the social traits of this individuality, and definite notions and principles were thus enunciated from which state and law were deductively constructed.

The historical school first introduced a change in all this. It afforded the legal practitioner the possibility of seeing that the law which he applied was the slowly ripened product of a course of development that extended over many centuries, and it afforded the philosophical juristic inquirer the possibility of understanding, that the law was not founded on immutable ideas and principles, but that it was a product of the creative mind of a nation, that this product was subjected to processes of transformation and development, and did not admit of regulation by the individual reason of a single philosophical inquirer. But while the history of law has become a universally recognised discipline in the science of jurisprudence, the application of its underlying principles to the philosophy of law has as yet by no means been universally carried out. On the contrary, the reason still plays an extensive rôle as foundation and evolutionary principle; and to a great extent the history of law and the philosophy of law still pursue their solitary ways as independent branches of knowledge.

In recent times, through the influence of ethnology, jurisprudence has entered on a new epoch. A new branch of the science of law has arisen in Europe, the so-called ethnological jurisprudence, and has already found in Germany, Austria, Italy, France, Belgium, and Holland, enthusiastic supporters. Ethnology, as it is known, is the science that has for the subject of its investigations the totality of phenomena of social life of all the peoples of the earth, and which makes use, in this investigation, of the methods of inductive inquiry exclusively employed by physical and natural science. After the science of ethnology had advanced to a certain point, the extension of ethnological inquiry to the domain of jurisprudence followed as of course.

To a certain extent the investigations of the history of law had prepared the way for ethnological jurisprudence. The inductive method was common to both. The idea of a history of the development of law was no longer strange to jurisprudence. Only the courage was wanting to allow the eye to range over the legal systems of all the peoples of the globe, instead of, as before, restricting it to very narrow limits. The historical investigation of law began in Europe with the history of the Roman law. Thereupon it was immediately extended to the Germanic laws of Europe, so that now all West-European peoples possess a highly developed history of law of their own. Recently, also, the history of Slavonic law has been assiduously treated.

Whereas in every case here it was a question of the sources of the laws that stood in immediate historical connection with the prevailing systems of Europe, jurisprudential investigation was slowly extended to more remote ethnical fields. The first impulse in this direction came from comparative philology. This science had succeeded in tracing the languages of extended groups of peoples back to common primitive tongues. Among these primitive tongues the Aryan, the common original language of the Indo-Germanic group of nations, first occupied the attention of inquirers, and the law of this group of nations thus became the first object of investigation of a comparative jurisprudence extending beyond the more restricted provinces of the history of law. The provinces of Græco-Italic, Germanic, Slavic, Celtic, Iranic, and Indian law were investigated with respect to a common origin, and various agreements and various deviations were discovered. In very recent times the laws of the Armenians and the Ossetes in the Caucasus have been added to the laws of the Aryans, and the laws of the Afghans will probably soon follow these.

A number of more remote provinces of law have also been entered upon, in connection with theological, philological, and connate inquiries. Thus, particularly, in connection with biblical investigation the Israelitic law, in connection with the study of Arabic the Islamitic, in connection with the decipherment of the hieroglyphic writings the Old-Egyptian, in connection with the decipherment of the cuneiform inscriptions the Soumerian and the Assyrian-Babylonian, and in connection with sinology the law of China. In very recent times the Japanese law has also been treated.

In the laws of all these peoples, by the side of many peculiarities, were also found many phenomena of frequent and universal recurrence.

After the science of law had so far extended its activity in this direction, it was a final step only that ethnological jurisprudence took when it declared that the subject of juristic science was the investigation of the laws of _all_ the peoples of the earth. And yet this step was perhaps a more important one than all that had hitherto been taken. For a considerable group of peoples had up to then been entirely neglected by the science of law, namely the uncivilised peoples, the so-called primitive peoples or _Naturvölker_. And just the laws of these savages furnished the most remarkable disclosures. They exhibited everywhere the most singular parallel phenomena, and made it possible to open up a complete early history of the law, and to bring to light periods of jural development of which the history of civilised peoples has preserved but a few unintelligible remains. Ethnological jurisprudence is thus able to supply complementary information at a point where the threads of the history of law are lost in the obscurity of early times.

The condition of jural life in these primitive periods is very singular. No juristic philosopher has ever lighted on the idea that primitive man could exist with such jural conceptions as he actually does. That which ethnological jurisprudence has brought to light in this connection is something absolutely new and astonishing, something that no brooding brain could have ever developed out of any idea or principle. Indeed, it is so strange that it could not be conceived at all if we did not have it before our eyes to-day among savage tribes.

The collecting of the laws of uncivilised peoples constitutes an independent task of ethnological jurisprudence. In this way the latter science will fill up the gaps which historical jurisprudential inquiry left open in our knowledge of the jural life of man. But more important than all, perhaps, will ethnological jurisprudence become for the future development of the philosophy of law. In this connection it goes hand in hand with the sociological tendency which dominates our time and has its surest foundation in ethnology.

The prime significance of ethnological jurisprudence lies in the fact that it is an ethnological science.

At first ethnology was a purely empirical science. It gathered together all the attainable phenomena of ethnic existence, and separately, at first, among single peoples and tribes. After an extensive store of material had accumulated in this manner, the discovery was made that in many provinces of ethno-social life, especially in the provinces of religion, law, and morals, especially also in all provinces of social custom, phenomena of essentially similar character presented themselves among a great number of peoples in the case of whom neither any original tribal relationship nor any infusion from one nation into the other could be assumed; and, curious to say, these were frequently the most singular phenomena, of which one would have thought at first that they had sprung from the individuality of a determinate people. This discovery of universal ethnographic parallels was all the more surprising in view of the fact that historical special inquiry, whose province up to then had been essentially national life, had placed especial emphasis on outwardly prominent events occurring in a different form in every nation, whereas phenomena that appeared uniformly among the different nations were little noticed. People had therefore grown accustomed to regard every nation as something existing by itself and peculiar to itself, and, particularly, had also declared it as inadmissible to employ phenomena of the life of one nation to explain corresponding phenomena of the life of another nation.

The discovery of ethnographical parallels led to wholly different ideas. It became clear that a great portion of human ethnical existence was not founded in the peculiar character of particular peoples, but in the character of the human race, in the universal nature of man. And it became in addition clear that that which repeated itself everywhere on the earth, which was therefore an expression of the universal human, was something entirely different from that which previous philosophy had declared to be the actual human. It also became clear, at the same time, that the nations thought quite differently from what the individual man did. With this, however, the foundation of the entire previous philosophy was shaken. If the axiom of modern ethnology is correct, namely that it is not _we_ that think, but _it_ that _thinks in us_,[5] we shall no longer be able to explain our nature from our consciousness, from our ego, from our reason, but we shall have to pursue this momentous “It” that thinks in us, and since we cannot find it _in_ us we shall have to search for it _outside of_ us in the expressions of the human soul in the life of the race.

This is the fundamental idea of modern ethnology. It seeks to collect all the expressions of the human soul in the life of the species, and from them to derive its inferences as to the nature of man. It regards ethnic existence as the precipitate of human psychical existence, and not merely of that part of it which is conscious, but also of that part of it which is unconscious, that which is inaccessible to introspective observation, that which is not thought, but is merely lived. It enlarges accordingly the domain of psychology, which was restricted hitherto to the analysis of the human consciousness, by the incorporation of an additional domain unmeasured in extent.

These general conceptions of ethnology are also determinative for the science of ethnological jurisprudence, and from this results its peculiarity as contrasted with the other branches of juristic knowledge.

Ethnological jurisprudence places the centre of gravity of the science of law not like the previous juristic philosophy in the individual jural consciousness, but in the law viewed as a province of ethnic existence. It regards the laws of the nations as the precipitates of that which is now active and has been active as jural instinct in the entire human race. It assumes that when all the phenomena of law in the life of the nations have been fixed, an infinitely more valuable material will be drawn therefrom adapted to the disclosure of the nature of law than could have ever in the world been acquired by an analysis of the individual jural consciousness. It does not regard the individual jural consciousness as something innate in man and exempt from the altering effects of time, but as a product of the social conditions in which the individual has grown up. It assumes, therefore, that the individual jural consciousness changes with a change of the social conditions, so that a man who grows up under different social conditions possesses a different jural perception. This assumption, if we compare the expressions of the jural consciousness of races low in the scale of culture with those of civilised peoples, is one that cannot be escaped. We have only to recall to mind the irresistible force with which the jural sense of peoples that live under clan-constitutions demand vengeance of blood, whereas this species of retaliation no longer exists in our jural consciousness of to-day. Thus there are hundreds and thousands of jural instincts and conceptions which are present at certain stages of civilisation and disappear entirely at others.

Ethnological jurisprudence therefore assumes, that the juristic philosopher who lays at the foundation of his system essentially his own jural consciousness, simply enunciates therewith a system of law that answers perhaps to the current conceptions of his time and his people, but which can in no sense lay claim to a value beyond that.

Quite different, on the other hand, are matters conditioned when the inquirer has before him the laws of all the peoples of the earth from the lowest to the highest. Here he has in his possession a picture of the jural consciousness of the mind of humanity, which is no longer subject to alteration, but which, to the extent that the development of human jural life has advanced, is complete.

For the execution of its task ethnological jurisprudence first requires a collection of the laws of all the peoples of the earth. Each one of these laws is of equal value to ethnological jurisprudence in so far as the jural consciousness of humanity has found expression in it in any form. Especially deserving of consideration are the laws of the so-called savage peoples that have been so much neglected and contemned hitherto; since they bring to light the jural consciousness of humanity in its germinal stages, and since higher formations are invariably best understood when we know their first beginnings.

The solidest basis for ethnological jurisprudence would be furnished by a monographic treatment of the law of every single tribe and people of the earth. By such monographic treatments the entire social organisation of a given tribe or people would be exhibited in all its complicated reciprocal relations, and we should be able to follow the law in all the thousands of minute ramifications that connect it with the remaining provinces of national life. But such a monographic treatment of the law of all the nations of the earth is accompanied with great difficulties, and this part of the task of the science of law has as yet been undertaken only to a limited extent.

The condition of affairs is best in this respect where the nations themselves have collected and compiled their legal customs in books of laws. But such collections are found only among peoples that deserve to some extent the appellation of civilised peoples. Among the great majority of peoples the law is simply practised and handed down by oral tradition, so that here the legal customs must be collected by members of foreign civilised nations,—a very difficult labor and one that can be accomplished only by persons who take up their abode permanently among the races in question and become thoroughly familiar with their language and habits of life.

Collections of this character we possess unfortunately only to a very limited extent, and our knowledge accordingly of the law of uncivilised peoples is still very meagre. Even the books of law possessed by the various peoples have not all been made available to juristic science. In part they have not yet been printed, and in part they have not yet been translated into a generally understood language. Considerable time will yet be required before the existing material has been made wholly accessible.

Not before the legal customs of all the peoples of the earth have been collected will ethnological jurisprudence be in a position to furnish a successful solution of the task it has set itself,—the task namely of a causal analysis of all the phenomena of the jural life of the human race. Yet to a certain extent this task may be undertaken at present, even with a relatively limited store of material.

The starting-point for the ethno-juristic investigation of the phenomena of jural life is furnished by the ethno-juristic parallels, legal customs that are found uniformly appearing among the nations, without there being any reason to assume that one nation has received them from another. Legal customs of this character are in part so universally diffused over the earth that they may be characterised as a common possession of mankind; in part they appear sporadically among unrelated peoples; in part they are restricted to more limited domains. The most important legal customs are those that have universal dissemination; for here it may be assumed that they are a necessary emanation of the social side of human life. Legal customs that occur only sporadically, but appear uniformly among unrelated peoples, must likewise be regarded as the products of the universal nature of man, yet only as such that _can_ arise under definite conditions of existence. Legal customs that occur only in limited ethnological domains will have to be referred to the peculiar character of definite peoples and tribes. Legal institutions of universal character are, for example, the forms of marriage by capture and purchase of the bride, blood-vengeance, the right of refuge, the systems of composition, ordeals, oaths, and so forth. Almost universal are the levirate, and the betrothal of children. Sporadically among unrelated peoples appear: the seizure of the corpse of the debtor for debt; execution by fasting, whereby the creditor brings pressure to bear upon his debtor by having him fast a definite period of time before his dwelling; the custom of the chief doing combat with his grown up son, to whom the command of the tribe passes if he conquers his father; and so forth.[6] Frequently it is the most curious customs that thus recur, among peoples that are completely separated from each other by oceans and inaccessible mountain ranges and have unquestionably never been in communication with each other.

The explanation of these ethno-juristic parallel phenomena is in part not very difficult, inasmuch as many of them can be traced back to fixed forms of social organisation. Thus, for example, a whole group of universally recurring legal customs is associated with the peculiar formation of the clan-constitutions and clan-law which regularly appears among uncivilised peoples and characteristically differs from the form of political organisation familiar to the present age. Many legal customs are also based on religious conceptions and social customs, and their explication in such cases is frequently very difficult.

A complete explanation of all the legal customs of all the peoples of the earth with respect to their social causes would exhaust the work of ethnological jurisprudence as an ethnological discipline. But in the same way that the acquisitions of ethnology are in their turn utilisable towards the constitution of a universal philosophy, to which they will impart perhaps an entirely different character, so will the results of ethnological jurisprudence be in their turn utilisable towards the constitution of a universal science of law and for the philosophy of law, in which probably, through its means also, a powerful change will be inaugurated. These are the ideas, traced in their most general characters, that may be regarded as the fundamental ones in “ethnological jurisprudence.”

ALBERT HERMANN POST.

FOOTNOTES:

[4] Translated from the manuscript of Dr. Albert Hermann Post by Thomas J. McCormack.

[5] Bastian.

[6] The reader will find a brief survey of the ethno-juristic parallels appearing among the various peoples of the earth, in a treatise of mine entitled _Ueber die Aufgaben einer allgemeinen Rechtswissenschaft_ (1891), pp. 27 to 72.

AMERICAN POLITICS.

Nothing in this country appears to the stranger more intricate and inexplicable than our politics. The different parties, two big ones and several little ones, the various machines, county, state, and national, the “bosses,” “heelers,” and “workers” present such a confusion of ideas and a terminology so varied, that it is only after many years that the foreigner begins to comprehend our system of government and the principles underlying our political movements. Indeed, the majority of Americans themselves are no better off and have no clear perception of the part they are playing in the administration of affairs or the ethical effects of the ballot which they cast. Ask the ordinary voter why he supports the candidates of a certain party and you will find that his reasons are reducible to a few concrete facts, and are rarely governed by any general principles.

In the Southern states the vast majority of the whites are democrats through opposition to the republican party which fought the war and deprived them of their slaves. The negroes on the other hand are republicans because it is to that party they owe their freedom, and from it they expect protection for themselves in the exercise of their political rights and the blessings of opportunity for education. The political question there becomes a race question, utterly regardless of the principles which the two great parties represent. Let there be a complete change of platforms and the result would be precisely the same as it has been for the past generation—the South would still remain democratic, and the votes of their presidential electors would still be cast for the candidates of that party.

There is a minor race question in the feeling against foreigners, more especially Irish, Italians, and Germans, influenced to some extent by the fact that a large number of these foreigners are Roman Catholics and that there is an uneasy suspicion on the part of some Americans that the Catholic church is hostile to the spirit of democracy, a suspicion not entirely unfounded if one should judge solely by the sayings and doings of some of the prelates of that church for the past forty years. This “Know-nothing” sentiment at one time threatened to create a solid foreign vote in opposition. Germans and Irish united under the protecting wings of Tammany Hall and, aided by clergymen who hoped to obtain part of the state educational fund for their private parochial schools, formed a strong ally to the national democratic party. Happily prejudices of race and religion are dying out and neither party can now claim a monopoly of the foreign vote. Strange as it may seem, however, the Irish and German elements, so recently the objects of proscription themselves, have in late years become embittered against the Chinese. To the patient industry of the Mongolian immigrants is due the building of the Pacific railroads, when it would have been impossible to obtain white labor, and the cultivation and development of the Pacific coast states. Congress was terrorised into passing the law excluding all Chinese laborers. It was more than race prejudice which contributed to this hatred of the Chinese. The chief reason for Chinese exclusion was an economic one. Great masses of laborers feared that the Chinese by immigrating in vast numbers would deprive them of work by taking their places at lower wages, and, having the ballot, they dictated to Congress the terms of the Anti-Chinese Act.

The alien contract labor law is a measure conceived in the same spirit and directed against the hiring of laborers abroad by American contractors, who could thus displace their employés at lower wages by Hungarians, or Poles, or Russians, ignorant of the language of this country and whose compensation could be the more easily reduced to a bare maintenance, and who in sickness or old age could be turned out on the roads to die without costing the contractor any contraction of his bank account. There was some excuse for this law, or at least for the feeling which prompted it, when the miners of a whole section could be evicted and they and their families made to suffer the pangs of slow starvation because the owners of the coal lands found they could obtain human machines at a less cost from abroad. It was natural that the laborers should demand a law which offered some immediate relief even at the risk of meeting wrong with wrong, rather than that they should attempt to regulate affairs on abstract principles of justice while their stomachs were empty and their wives and children were dying for want of sufficient nourishment. That feeling, however, is also vanishing and American workingmen are beginning to see that the increase in population, native-born as well as that imported by contract, is steadily adding to the number of competitors and lowering the rate of wages. Their attention is becoming more and more directed to the opening of new opportunities for work rather than to the restricting of the number of workers.

Another class of men, if they vote at all, do so on no general principle of public welfare, but solely for their own advantage at the expense of their fellow men. These are to be found among the rich manufacturers, the coal, and iron, and railway kings, and the manipulators of the crops of the nation. Rarely casting a ballot in person, they give notice to their thousands of employés that if the latter do not support the candidates or the party which they happen to favor, the employés’ places will be given to more pliant servants. These men are as non-partisan as the most ardent reformer could wish. One of them, a few years ago when questioned by an investigating committee of the New York state legislature, said: “In a republican district I was a strong republican; in a democratic district I was democratic; and in doubtful districts I was doubtful, but in politics I was an Erie railroad man every time.” Another famous man of the same type said he had no politics; that he found it cheaper to buy up one set of legislators after they were elected than to purchase two sets of candidates before election. These corrupt men, counting their wealth by tens of millions, influencing state legislatures and the national Congress, and throwing their weight into Presidential campaigns, constitute the chief “dangerous class” in the United States to-day, far more threatening to the permanency of free institutions than the anarchists who were hanged at Chicago.

Then there are the illy-paid employés of these men who do their bidding at the polls, voting for the candidates of their masters. Promise of office or patronage lures others into the support of one party or the other. Lastly come the poorest of the poor who live in the most miserable tenement houses, or when single hive in the big lodging-houses which are found chiefly in New York and Chicago. A ton of coal or a barrel of flour is the bribe to the former, frequently effected through the medium of the poor wretch’s wife who does not care for politics but sees a very material advantage in the food or fuel offered by the ward worker. The lodging-house voters, paid by drinks of whiskey or dollar bills, until recently in New York were marshalled in squads of twenty or thirty early on the morning of election day, given their ballots and compelled to hold them aloft between the thumb and forefinger of the right hand so that the heeler or paid servant of some political faction might watch them from the moment they took their place in the line of voters until their ballots were handed to the election inspectors and dropped in the box. Both parties wink at such frauds and their henchmen directly countenance and assist in them but the party that happens to be in the majority in any locality is usually the one most guilty. The result is that the minority affects great virtue and loudly denounces the corruption of its opponents.

Among those who do vote on principle are the prohibitionists, the greenbackers, the adherents of ephemeral labor parties and the socialists. The anarchists generally refrain from voting because they do not believe in any government by force and say that an enlightened public opinion will lead the people to dispense with such things as the army and navy and police and law courts. The socialists occasionally vote for the men of other parties whom they think represent the worst measures, in order the sooner, as they frankly avow, to produce revolutionary conditions, which they expect would assist them greatly in their propaganda. The prohibitionists, greenbackers, and labor men each take a partial view of political economy. The first see the evils and degradation arising from intemperance and think that everything else must yield to the one consideration of the abolition of the liquor traffic. The panacea of the greenbackers consists in the destruction of the monopoly of the currency now enjoyed by the national banks. The labor men have different shibboleths at different times such as the prevention of child labor in factories, an eight-hour work-day and the like—measures which might effect some relief but are minor matters compared with the great social problem of the increase of poverty in the midst of the greatest productive energies which the world has ever seen, a problem which is rapidly coming to the front and overshadowing all others.

But these minor movements hardly produce a ripple on the surface of our political waters. There are only two parties worthy of the name in the United States to-day, as there have been but two ever since the days of Thomas Jefferson and Alexander Hamilton. These parties go on forming platforms chiefly on the theory of offending the least number of voters and phrasing their declarations in vague terms which may be explained one way in one part of the country and another way in another part. Such is a cursory view of the field of American politics to-day.

It may seem that I have made out a pretty bad indictment of corruption against our politics and that the view of the cynic is correct that American politics are desperately wicked and there is no health in them. But the moral forces which are operating in the world are fortunately not dependent upon the changeable methods or the selfish objects of men. It is here in America, perhaps more than anywhere else, that the natural laws of social development have fullest play. It is here that the evolution of politics is working itself out freely, untrammelled by tradition or custom. It is here that the ultimate ideal of politics will first be reached. When the framers of the Declaration of Independence formulated their proposition that governments derive their just powers from the consent of the governed, a step in the right direction was taken—a step that was in accordance with our old Saxon traditions, yet for the first time in the world’s history made on an extended scale, to base human government on the principles of natural law. And through all the vicissitudes of our country, its struggle for independence, its war for the liberation of its commerce, its civil conflict which would have dismembered any other nation, or would have left one section the subjugated serfs of the other, through a disputed presidential election which strained the written constitution to its utmost, the great moral force of natural law has been working, now through one party, now through another, gathering impetus as it goes and giving promise always of better times to come.

It is in this broad view that all the petty thieveries and striving for place and power sink into utter insignificance. The people do still rule. They may sleep for a time but are sure, sooner or later, to assert their rights in accordance with the instincts of the human mind, which are good and not bad. As long as the suffrage shall exist it is reasonably certain that this American government, “of the people, by the people, for the people,” shall not perish from the earth. If the wealthy monopolists could control the suffrage, the prospects might be different. The freedom of the voter has been impaired to a certain extent but the American people with quick instincts have awakened to the danger. The Australian system of voting, which secures secrecy and freedom from intimidation and almost extinguishes bribery is now becoming very popular. Fifteen of the states have adopted it and the other twenty-nine will, no doubt, follow their example in a few years. But the introduction of measures for its establishment presented the curious anomaly of being opposed by democrats in some localities and by republicans in others, both for partisan reasons, constitutional and high moral pretexts being of course advanced. When it becomes the general law, it will do more than anything else to purify electoral methods.

Entirely above the question of methods, however, there are certain principles involved in American politics which it becomes of the highest importance to comprehend and which furnish the key to the apparently inexplicable confusion. These principles, it seems to me, are reducible to two, which may be likened to the centripetal and centrifugal forces in nature. As both are needed for the stability of the physical universe, so both the centralising and decentralising tendencies in politics are necessary for the co-ordination of the state. It is in the free play of these forces, each in its proper sphere, that lies the assurance of the perpetuity of American institutions. But as the ideal has not yet been reached, the practical result is that one tendency begins to act, at first legitimately, then from the aggrandisement of power and the “cohesive force of public plunder” the administrators of government attempt to stretch it unduly, the opposition comes to power and the same story is repeated. In each case the liberal party succeeds the conservative, acts at first wisely, then corrupted by the subtle temptations of place and power, and wishing to retain both, it becomes opposed to change and begets a new conservatism, while new liberals arise on a higher plane of evolution to continue the never-ending struggle. And it must be recollected that the conservative party of each generation is far more liberal than the one which it displaced, thus giving assurance of perpetual progress.