inclination to do
wrong, a feeling of penitence as when the individual has
committed a wrong. With the feeling of indignation is joined a
desire for vengeance, with the feeling of penitence a desire of
atonement, the former tending towards an act of vengeance and
the latter towards an act of expiation. The jural judgments of
individuals are not complete judgments; they are based upon an
undefined sense of right and wrong. In the consciousness of the
individual there exists no standard of right and wrong under
which every single circumstance giving rise to the formation of
a jural judgment can be subsumed. A simple instinct impels the
individual to declare an action right or wrong.[276]

If these motives are the materials with which the administration of
justice has to deal, the legal motive which has invariably controlled
the courts is something quite different. The courts in the
administration of law have invariably sought, above all else, to achieve
consistency. It is an ancient maxim of English law that "it is better
that the law should be certain than that the law should be just."[277]

The conception implicit in the law is that the rule laid down in one
case must apply in every similar case. In the effort to preserve this
consistency in a constantly increasing variety of cases the courts have
been driven to the formulation of principles, increasingly general and
abstract, to multiply distinctions and subtleties, and to operate with
legal fictions. All this effort to make the law a rationally consistent
system was itself inconsistent with the conception that law, like
religion, had a natural history and was involved, like language, in a
process of growth and decay. It is only in recent years that comparative
jurisprudence has found its way into the law schools. Although there is
a vast literature upon the subject of the history of the law, Maine's
_Ancient Law_, published in 1861, is still the classic work in this
field in English.

More recently there has sprung up a school of "legal ethnology." The
purpose of these studies is not to trace the historical development, of
the law, but to seek in the forms in use in isolated and primitive
societies materials which will reveal, in their more elementary
expressions, motives and practices that are common to legal institutions
of every people. In the Preface to a recent volume of _Select Readings
on the Origin and