The history of institutions has long been neglected because the object of the study has been misunderstood and consequently its method too. No purpose, either scientific or practical, was assigned to it; the past offered a mere object of curiosity. Legal history could find no true scientific purpose when it was believed that alone the philosophy of law, founded upon the study of man's nature, was the true science of law, and so should be the source of legislative inspiration. And on the other hand it could have no immediate practical end, since it was admitted that the institutions created by the legislator, though they had a history, had been severed from their past by codification and been given an independent existence. The study of the history of institutions thus enjoyed secondary importance. It followed that the early legislation of a country was studied by a method appropriate to this role, a method solely descriptive, detailing the legislation of a country chronologically, without any critical appreciation.
The introduction of the inductive method in the social sciences destroyed the philosophico-metaphysical conception of law. Since, then, law has come to be regarded as a resultant of social facts, a product of the society in which it develops; it is not the same through time or in different countries; it is in a constant state of flux. It is now agreed that we must search in the history of legal institutions for. the greater part of our material for the true science and the true philosophy of law.
It is recognized, too, that the study of the history of legal institutions has an essentially practical side. If we are to understand the nature of existing institutions which students should already be acquainted through their courses in philosophy, or their first year work in the law school or college.
1: Conception and Method of Flach. The study of the history of institutions is important, then, from both a scientific and practical point of view. We shall refer to this again; for the moment, let us consider what method of study will enable us to accomplish this twofold purpose.
We may disregard two tendencies that have here become manifest: the sociological tendency and the ethnologico-juridical tendency, the latter represented by Morgan, MacLennan, Post, and Letourneau. A distinguished professor of the College de France, Flach, enjoys the distinction of being the first to demonstrate and practise the proper method of obtaining these ends. He was the first to protest against the double error of studying the history of institutions merely from a national and descriptive point of view. He pointed out very clearly that it was impossible to study the history of any one nation without knowing, at least along broad lines, the general history of civilization, and that it was equally impossible to study the history of the institutions of a country without knowing, at least in a general way, the history of institutions in all other countries.
The history of law is consequently, for him, synonymous with the history of comparative law. "If nations of the same race," he says, "preserve in their speech, traditions, and popular literature, a common residuum, after years of profound separation, why should they not retain in their law the vestiges of a distant past? And may we deny that neighboring nations, which have met in war, turn by turn conquerors and conquered, which have later been united by the close bonds which commerce, art, and literature create amongst men, have not exercised a durable influence upon each other's laws?"8
Flach would also have us understand the life of institutions, that is to say their origin, their development, the influence which surrounding facts have exercised upon them, and the way in which this influence operated. Historical investigation consists, he says, in "resolutely undertaking a detailed scrutiny, methodical and critical, of the texts of laws, country by country, race by race, epoch by epoch, in classifying, comparing, and verifying them, so that they mutually illuminate the essential and elementary data which analysis enables us to uncover within this immense mass of material, and so in constructing slowly and cautiously a scientific synthesis."9
2: The History of Institutions. The study of the history of institutions should be complete; it should follow the inductive method strictly. Beginning with the legal institutions of the Romans, it should continue by a general course upon the institutions of the four groups of western countries: Latin, Anglo-Saxon, Germanic, and Slavic.
Such a study of the whole subject must be made only along its broad lines, so that it presents the general features of the institutions of all the countries and the influences of varying intensity which social phenomena have exercised upon them. It should be divided into longer and more distinct historical periods than at present, and in each the student will examine the effects of such universal phenomena as Christianity, the canon law, feudalism, the struggle between the civil and religious powers, the Reformation, and absolute monarchy. In this way it is possible to reach an exact estimate of the significance of the great events of history. Feudalism, especially, can be understood only by a comparative study of the institutions of different countries. It will thus be clear why a particular phenomenon was felt in one country rather than another; why, for instance, in France and England, the law is feudal, while in Spain it is so essentially religious that certain of the old codes seem almost clerical.
8 Flach, "Les Origines de l'ancienne France" (Paris, 1886), Introduction, no. vi.
9 "L'Enseignement de l'histoire des legislations comparees au College de France," in "Revue Internationale de l'Enseignement," vol. xxxv (1898), p. 310; cf. "Le Levirat et les origines de la famille" from "Annales des Sciences Politiques" (May, 1900), pp. 3-7. Flach adopted this conception of the history of institutions and of the historical method in "Origines de l'ancienne France" (supra) and in his course on comparative law which he has given in the College de France since 1879.
Afterwards each period will be taken up, special emphasis being given to the history of the institutions of that group to which the student's country belongs. The aim will be to explain the origin and transformation of institutions and to reveal the influences of social environment attending their development. The student starts, therefore, by examining the social environment, the phenomena of every sort, of a given period; he next determines their intensity and energy; and finally he will inquire how, under their influence, the different institutions have sprung into existence and developed. Parallel with this the different methods will be emphasized which have been employed by jurists and judges, under the guise of interpretation, to develop the law in the direction of a more or less exact adjustment to new social needs.
In a last course of studies certain of the principal legal institutions will be taken up, such as the law of the family and of property. These will aim to describe, along strictly historical lines and in greater detail than in the general course already referred to, the origin and evolution of those institutions already examined by periods in the general course, as well as other institutions.
3: Social Environment. The study of social environment and its influence upon institutions is undoubtedly exceedingly difficult. Social phenomena are highly complex and react reciprocally upon each other in such a way that it will not always be easy to determine with precision the strength of the influence exercised by each phenomenon. Certain influences, too, may be very remote and react only gradually in combination with other elements. Yet in spite of these obstacles the study should be undertaken, for it is in no wise impossible. It will indeed be difficult if we propose to make the examination exhaustive, but not so if we rest content, as is best, to sketch its broad lines and general characteristics. It would in fact be improper to take these up exhaustively except in so far as there is real utility in doing so.
While the study of legal institutions by the method we have indicated is admittedly difficult, we shall be made thereby to see them in their true light. It will illustrate their greater or less interdependence and the variability of their essential and secondary elements, the former over long periods, the latter more rapid. They will not then appear as abstractions and still less as immutable; rather will they be seen to be derived from the general conditions of each period.