By Henry Sumner, Sir Maine
Creation by way of J. H. MORGAN
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Additional resources for Ancient Law: Its Connection to the History of Early Society
The whole question remains open as to the motives of societies in imposing. these commands on themselves, as to the connexion of these commands with each other, and the nature of their dependence on those which preceded them, and which they have superseded. Bentham suggests the answer that societies modify, and have always modified, their laws according to modifications of their views of general expediency. It is difficult to say that this proposition is false, but it certainly appears to be unfruitful.
Among the postulates which form the foundation of International Law, or of so much of it as retains the figure which it received from its original architects, there are two or three of pre-eminent importance. The first of all is expressed in the position that there is a determinable Law of Nature. Grotius and his successor took the assumption directly from the Romans, but they differed widely from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The ambition of almost every Publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of Nature and of her law, and it is indisputable that the conception in passing through the long series of writers on Public Law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory of ethic which has in its turn taken possession of the schools.
The contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the French lawyer. Their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. With the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested French law were ineradicable: and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen.