Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

216 Legal History in the Making
useless. Jurisprudence was bound to be a historical discipline in so far as it must
take stock of the social conditions which call forth legal principles; succession
and ownership, possession and contract did not start from specific laws or
from actual conflicts. Succession had its roots in the necessary arrangements
for the household on the death of the householder; ownership began with
taking occupation; possession was reducible to de facto detention; the origins
of contract went back to the practice of barter. Jurisprudence was also bound
to be analytical in so far as it must examine the logical consequences of legal
principles and their rational combinations. As Vinogradoff wrote: 14
The results are never quite rational or simple: various side influences and
cross-currents bring in unexpected turns and complicate actual developments.
Opposition and compromises between conquerors and conquered, psychological
peculiarities, industrial discoveries, the pressure of economic needs, produce all
sorts of variations which it would be impossible to reduce by dialectic process to
the evolution of one or the other principle. As a matter of fact the governing
principles of jurisprudence, such as tribal solidarity, the City State, the Catholic
Church, individualism, socialism, are synthetic in their nature and therefore subject
to disruption and combination as well as to evolution.
In conclusion, it may be of interest to cite first of all a significant
generalization made by Vinogradoff: 15
. . . in trying to understand the history of human society in its legal aspects we must
begin by ascertaining the leading themes which recur in jurisprudential thought. As
in music, they are not stereotyped in their manifestations, they vary in the course
of conflicts and harmonizing attempts, but they are not numerous and are therefore
amenable to definite observation and to reflective estimates.
I should like to add that the scope of the vision and the clarity of the analysis
in Vinogradoff s studies were, as in chess, the outcome of a complex and
all-embracing survey of all the participants in legal relations and conflicts.
The survey also embraced the critical zones of social tension and a careful
consideration of all possible perspectives. Today when we discuss the problems
of continuity and change in the development of legal knowledge it is very hard
to get rid of the impression that we have not usually been able to come up to
the high achievements of our predecessors. How often are our bold pretensions
to originality the result of our ignorance of the achievements of those who had
advanced so far beyond the horizons visible to us. Not infrequently the feeling
that we lack a sufficient apparatus of ideas arises from the fact that we are not
familiar enough with the vast experience of our predecessors. I am deeply
convinced that the heritage of Paul Vinogradoff is still of great importance
because of its potential to advance our knowledge and I believe that it is worthy
of thorough and attentive study and discussion both now and in the future.
14 Outlines of Historical Jurisprudence, i, 368-69, quoted by H.A.L. Fisher, Collected Papers, i,
65. 15 Ibid., 369; 66.