Legal Fictions
When primitive law has once been embodied in a Code, there isan end to what may be called its spontaneous development.
Henceforward the changes effected in it, if effected at all, areeffected deliberately and from without. It is impossible tosuppose that the customs of any race or tribe remained unalteredduring the whole of the long -- in some instances the immense --interval between their declaration by a patriarchal monarch andtheir publication in writing. It would be unsafe too to affirmthat no part of the alteration was effected deliberately. Butfrom the little we know of the progress of law during thisperiod, we are justified in assuming that set purpose had thevery smallest share in producing change. Such innovations on theearliest usages as disclose themselves appear to have beendictated by feelings and modes of thought which, under ourpresent mental conditions, we are unable to comprehend. A new erabegins, however, with the Codes. Wherever, after this epoch, wetrace the course of legal modification we are able to attributeit to the conscious desire of improvement, or at all events ofcompassing objects other than those which were aimed at in theprimitive times.
It may seem at first sight that no general propositions worthtrusting can be elicited from the history of legal systemssubsequent to the codes. The field is too vast. We cannot be surethat we have included a sufficient number of phenomena in ourobservations, or that we accurately understand those which wehave observed. But the undertaking will be seen to be morefeasible, if we consider that after the epoch of codes thedistinction between stationary and progressive societies beginsto make itself felt. It is only with the progressive that we areconcerned, and nothing is more remarkable than their extremefewness. In spite of overwhelming evidence, it is most difficultfor a citizen of western Europe to bring thoroughly home tohimself the truth that the civilisation which surrounds him is arare exception in the history of the world. The tone of thoughtcommon among us, all our hopes, fears, and speculations, would bematerially affected, if we had vividly before us the relation ofthe progressive races to the totality of human life. It isindisputable that much the greatest part of mankind has nevershown a particle of desire that its civil institutions should beimproved since the moment when external completeness was firstgiven to them by their embodiment in some permanent record. Oneset of usages has occasionally been violently overthrown andsuperseded by another; here and there a primitive code,pretending to a supernatural origin, has been greatly extended,and distorted into the most surprising forms, by the perversityof sacerdotal commentators; but, except in a small section of theworld, there has been nothing like the gradual amelioration of alegal system. There has been material civilisation, but, insteadof the civilisation expanding the law, the law has limited thecivilisation. The study of races in their primitive conditionaffords us some clue to the point at which the development ofcertain societies has stopped. We can see that Brahminical Indiahas not passed beyond a stage which occurs in the history of allthe families of mankind, the stage at which a rule of law is notyet discriminated from a rule of religion. The members of such asociety consider that the transgression of a religious ordinanceshould be punished by civil penalties, and that the violation ofa civil duty exposes the delinquent to divine correction. InChina this point has been passed, but progress seems to have beenthere arrested, because the civil laws are coextensive with allthe ideas of which the race is capable. The difference betweenthe stationary and progressive societies is, however, one of thegreat secrets which inquiry has yet to penetrate. Among partialexplanations of it I venture to place the considerations urged atthe end of the last chapter. It may further be remarked that noone is likely to succeed in the investigation who does notclearly realise that the stationary condition of the human raceis the rule, the progressive the exception. And anotherindispensable condition of success is an accurate knowledge ofRoman law in all its principal stages. The Roman jurisprudencehas the longest known history of any set of human institutions.
The character of all the changes which it underwent is tolerablywell ascertained. From its commencement to its close, it wasprogressively modified for the better, or for what the author ofthe modification conceived to be the better, and the course ofimprovement was continued through periods at which all the restof human thought and action materially slackened its pace, andrepeatedly threatened to settle down into stagnation.
I confine myself in what follows to the progressivesocieties. With respect to them it may be laid down that socialnecessities and social opinion are always more or less in advanceof Law. We may come indefinitely near to the closing of the gapbetween them, but it has a perpetual tendency to reopen. Law isstable; the societies we are speaking of are progressive. Thegreater or less happiness of a people depends on the degree ofpromptitude with which the gulf is narrowed.
