Outlines of historical jurisprudence - introduction (tribal law) 1

"... In the course of my legal and historical studies one great problem has presented itself over and over again—the problem of the relation between conditions and efforts, between aims and fate. It is in the sphere of law that this problem assumes its most definite aspect. Law, both customary and enacted, is intended to be a direction of conduct, but its actual application is a compromise be- tween intentions and circumstances. As Aristotle has put it, we have to take account in human affairs both of what is desirable and of what is possible. From this point of view, attempts to arrange society on reasonable lines culminate in conceptions of jurisprudence, while, on the other hand, all theories of jurisprudence have necessarily to start from some basis of given fact. Some knowledge of historical jurisprudence is needed by historians, because it helps to arrange the data of political and social life in accordance with consistent schemes of law. For lawyers historical jurisprudence is the best introduction to the social interpretation of the innumerable technical rules and doctrines of their profession. Unfortunately collabo- ration between jurists and historians, though highly desirable, is not often achieved in practice. Historians have not yet come to realize that private law may be more important for social development than constitutional arrangements. And as for lawyers, they often have to be content with the stereotyped statements of more or less antiquated textbooks. There is nothing for it but to step into the breach in the hope of reopening the discussion. ..." INTEODUCTION Part I. Law and fhe Sciences CHAFTEB FAQB I. Law and Logic 3 II. Law and Psychology 28 III. Law and Social Science .... 61 IV. Law and Political Theory .... 84 Part II. Methods and Schools of Jurisprudence V. Rationalists 103 VI. Nationalists 124 VII. Evolutionists 136 VIII. Modern Tendencies in Jurisprudence . . 147 TRIBAL LAW -^ Part I. The Elements of the FamUy I. Selection of Mates 163 II. The Mother and the Father . . . 188 III. Relationship and MabRiage .... 203 Part II. Aryan Culture IV. Aryan Origins 215 V. The Patriarchal Household .... 232 VI. The Joint Family 262 VII. Succession and Inheritance .... 274 Part III. The Clan and the Tribe VIII. The Organization op Kinship . . . 299 IX. Land Tenure . . . , . . . .321 X. The Law of the Tribal Federation . . 344 Additional Note . .• \ . . . . 370 List of Books Referred to in the Volume 373 Index 390