Chapter III: Origin and Landscape (2)

The work itself, like the corresponding codes of Dracon and Solon, came into being at the threshold of a “Late” period, and with political intentions. In the West, where the fiction of a continuing _Imperium Romanum_ produced the utterly meaningless campaigns of Belisarius and Narses, Latin codes had been put together (about A.D. 500) by Visigoths, Burgundians and Ostrogoths for subjugated Romans, and so Byzantium must needs get out a genuine Roman code in opposition. In the East the Jewish nation has already settled its code, the Talmud, while, for the immense numbers of people who were subject to the Emperor’s law, a code proper for the Emperor’s own nation, the Christian, had become a necessity.

For the _Corpus Juris_ with its topsy-turviness and its technical faults is, in spite of everything, an Arabic--in other words, a _religious_--creation, as evidenced in the Christian tendency of many interpolations;[108] in the fact that the constitutions relative to ecclesiastical law, which had been put at the end even in the Theodosian codex, were now placed at the beginning; and very markedly in the preambles of many of the Novels. Yet the book is not a beginning, but an end. Latin, which had long become valueless, now disappears completely from legal life (even the Novels are mostly in Greek), and with it the work so misguidedly written in that language. But the history of the law pursues the way that the Syrian-Roman law-book had indicated to it, and in the eighth century arrives at works in the mode of our eighteenth, such as the Ecloga of the Emperor Leo[109] and the Corpus of the great Persian jurist Archbishop Jesubocht.[110] In that time, too, came the greatest figure of Islamic jurisprudence, Abu Hanifah.

VII

The law-history of the West begins in total independence of Justinian’s creation. At that time it was in complete oblivion, so thoroughly unimportant, in fact, that of its main element, the Pandects (Digest), there was but one manuscript, which by accident (an unfortunate one) was discovered about 1050.

The pre-Cultural phase, from about A.D. 500, had thrown up a series of Germanic tribal codes--the Visigothic, Ostrogothic, Burgundian, Frankish, and Lombard--which correspond to those of the Arabian pre-Culture that survives for us only in the Jewish[111] Deuteronomy (_c._ 621, more or less our Deuteronomy xii-xxvi) and Priestly History (_c._ 450, now represented by the second, third, and fourth books of the Pentateuch). Both are concerned with the values of basic significance for a primitive existence--family and chattels--and both make use, crudely, yet shrewdly, of an old and civilized law--the Jews (and no doubt the Persians and others) working upon the late Babylonian,[112] and the Germans upon some few relics of Urbs Roma.

The political life of the Gothic springtime, with its peasant, feudal, and simple burgher laws, leads very soon to particular development in three great branches of law which have remained distinct to this day--and there has been no unifying comparative history of law in the West to probe the deep meaning of this development.

The most important by far, owing to the political destinies in which it was involved, was the Norman law, which was borrowed from the Frankish. After the Conquest of England in 1066, this drove out the native Saxon, and since that day in England “the law of the great men has become the law of the whole people.” Its purely German spirit has developed it, without a catastrophe, from a feudal régime of unparalleled stringency into the institutions of the present day which have become law in Canada, India, Australia, South Africa, and the United States. Even apart from the extent of its power, it is the most instructive in West Europe. Its development, unlike that of the rest, did _not_ lie in the hands of theoretical jurists. The study of Roman law at Oxford was not allowed to touch practice; and at Merton in 1236 the higher nobility expressly rejected it. The Bench itself continued to develop the old law-material by means of creative precedents, and it was these practical decisions (“Reports”) that formed the basis of law-books such as that of Bracton.[113] Since then, and to this day, a statute law, kept living and progressive by the court decisions, and a common law, which always vividly underlies the legislation, exist side by side, without its ever becoming necessary for the representatives of the people to make single large efforts at codification.

In the South, the law of the German-Roman codices above mentioned prevailed--in southern France the Visigothic (called the _droit écrit_ in contrast to the Frankish _droit coutumier_ of the north), and in Italy the Lombard (which was the most important of them, was almost purely Germanic, and held its own till well into the Renaissance). Pavia became a study-centre for German law and produced about 1070 the “_Expositio_,” by far the greatest achievement of juridical science in the age, and immediately after it a code, the “_Lombarda_.”[114] The legal evolution of the entire South was broken off by Napoleon’s _Code Civil_, which took its place. But this in turn has become in all Latin lands and far beyond them the basis for further creative work--and hence, after the English, it is the most important.

In Germany, the movement that set in so powerfully with the Gothic tribal laws (_Sachsenspiegel_, 1230; _Schwabenspiegel_, 1274) frittered itself away to nullity. A host of petty civic and territorial rights went on springing up until indignation with the facts induced an unreal political romanticism in dreamers and enthusiasts, the Emperor Maximilian among them, and law came under attack with the rest. The Diet of Worms in 1495 framed its “_Kammergerichtsordnung_”[115] after an Italian model. Now there was not only the “Holy Roman Empire” on German ground, but “Roman law” as German common-law. The old German procedures were exchanged for Italian. The judges had to study their law beyond the Alps, and obtained their experience not from the ambient life, but from a logic-chopping philology. In this country alone are to be found, later, the ideologues for whom the _Corpus Juris_ is an ark to be defended against the profanation of realities.

What, in fact, was it that under the high-sounding name passed into the intellectual keeping of a handful of Gothic men? About 1100, at the University of Bologna, a German, Irnerius, had made that unique manuscript of the Pandects the object of a veritable Scholasticism. He transferred the Lombard method to the new text, “the truth of which, as a _ratio scripta_, was believed in as implicitly as the Bible and Aristotle.”[116] Truth!--but the Gothic understanding, tied to the Gothic life-content, was incapable even of distantly guessing at the spirit of these texts, for the principles fixed in them were the principles of a civilized and megalopolitan life. This school of the glossators, like Scholasticism in general, stood under the spell of concept-realism; as they held the genuine real, the substance of the world, to be not in things, but in universal concepts, so they maintained that the law was to be found not in custom and usage as displayed in the despised[117] _Lombarda_, but in the manipulation of abstract notions. Their interest in the book was purely dialectical[118]--never was it in their minds to apply their work to life. It was only after 1300, and then slowly, that their anti-Lombard glosses and summæ made their way into the cities of the Renaissance. The jurists of the Late Gothic, above all Bartolus, had fused canon and Germanic law into one whole with a definitely practical intention, and into it they brought ideas of actuality--here, as in Dracon’s code and the Imperial Edicts from Theodosius to Justinian, the actuality of a Culture that is on the threshold of its “Late” stage. It was _the creation of Bartolus that became effective_ in Spain and Germany as “Roman law”; only in France did the jurists of the Baroque, after Cujacius and Donellus, get back from the Scholastic to the Byzantine text.

But Bologna witnessed, besides Irnerius’s achievement in abstraction, an event of quite other and decisive import--the famous Decretum of Gratian, written about 1140.[119] This created the Western _science of spiritual law_. For by bringing the old-Catholic, Magian, church-law,[120] founded in the Early-Arabian sacrament of baptism,[121] into a system, it provided the very form that the new-Catholic, Faustian Christianity needed for the jural expression of its own being, which reached back to the prime sacrament of an altar and a consecrated priesthood. With the _Liber extra_ of 1234 the main body of the _Corpus Juris Canonici_ is complete. What the Empire had failed to accomplish--the creation, out of the immense undeveloped profusion of tribal laws, of a general Western “_Corpus Juris Germanici_”--the Papacy achieved. There came into existence a complete private law, with sanctions and processes, produced with German method out of the ecclesiastical and secular law-material of the Gothic. This is the law called “Roman” which presently, after Bartolus, was infused into all study of the texts of Justinian themselves. And it shows us, in the domain of jurisprudence as elsewhere, that great dissidence, inherent in the Faustian, which produced the gigantic conflict between the Papacy and the Empire. The destruction between _fas_ and _jus_, impossible in the Arabian world, was inevitable in the Western. They are two expressions of a will-to-power over the infinite, but the will behind “temporal” legislation is rooted in custom and lays hands on the generations of the future, while that of “spiritual” originates in mystical certainty and pronounces a timeless and eternal law.[122] This battle between equally matched opponents has never yet been ended, and it is visible even to-day in our law of marriage, with its opposition of the ecclesiastical and the civil wedding.

With the dawn of the Baroque, life, having by that time assumed urban and money-economic forms, begins to demand a law like that of the Classical city-states after Solon. The purpose of the prevailing law was now perfectly clear. But it was a fateful legacy from the Gothic that the creation of “the law inborn in us” was looked upon as the privilege of a learned class, and this privilege no one succeeded in shaking.

Urban rationalism turned, as in the case of the Sophists and the Stoics, to busy itself with the “law of nature,” from its foundation by Oldendorp and Bodinus to its destruction by Hegel. In England the great Coke successfully defended Germanic self-developing practical law against the last attempts of the Tudors to introduce Pandect law. But on the Continent the systems of the learned evolved in _Roman_ forms right down to the state codes of Germany and the schemes of the _Ancien Régime_ in France on which the Code Napoléon was based. And therefore Blackstone’s _Commentaries on the Laws of England_ (1765) is the one purely Germanic Code, and it appeared when the Faustian Culture had already reached the threshold of its Civilization.

VIII

With this I reach the objective and look around me. I see three law-histories, connected merely by the elements of verbal and syntactical form, taken over by one from another, voluntarily or perforce, but never revealing to the new user the nature of the alien being which underlay them. Two of these histories are complete. The third is that in which we ourselves are standing--standing, too, at a decisive point where we embark in our turn upon the big constructive task that Rome and Islam, each for itself and in its season, have accomplished before us.

What has “Roman” law been for us hitherto? What has it spoilt? What can it be for us in the future?

All through our legal history runs, as basic motive, the conflict between book and life. The Western book is not an oracle or magician’s text with Magian under-sense, but _a piece of preserved history_. It is compressed Past that wants to become Future, through us who read it and in whom its content lives anew. Faustian man does not aim, like Classical man, at bringing his life to a self-contained perfection, but at carrying on a life that emerged long before him and will draw to its end long after him. For Gothic man--so far as he reflected about himself at all--the question was not whether he should look for linkages of his being and history, but in what direction to look for them. He required a past in order to find meaning and depth in the present. On the spiritual side the past which presented itself to him was ancient Israel; on the mundane it was ancient Rome, whose relics he saw all about him. What was revered was revered not because it was great, but because it was old and distant. If these men had known Egypt, they would hardly have noticed Rome, and the language of our Culture would have developed differently.

As it was a Culture of books and readers, Classical texts were “received” in any and every field as Roman law was “received” in Germany, and their further development assumed the form of a slow and unwilling self-emancipation. “Reception” of Aristotle, of Euclid, of the _Corpus Juris_, means in this Culture (in the Magian East it was different) discovering a ready-made vessel for our own thought a great deal too soon, with the result of making a historically built kind of man into a slave of concepts. The alien life-feeling, of course, did not and could not enter into his thought, but it was a hindrance to his own life-feeling’s development of an unconstrained speech of its own.

Now, legal thought is forced to attach itself to something tangible--there must be something before it can abstract its concepts; it must have something from which to abstract. And it was the misfortune of Western jurisprudence that, instead of quarrying in strong, firm custom of social and economic life, it abstracted prematurely and in a hurry from Latin writings. The Western jurist became a philologist, and practical experience of life was replaced by scholarly experience in the purely logical separation and disposition of legal concepts on self-contained foundations.

Owing to this, we have been completely cut off from touch with the fact that _private law is meant to represent the social and economic existence of its period_. Neither the Code Napoléon nor the Prussian Landrecht, neither Grotius nor Mommsen, was definitely conscious of this fact. Neither in the training of the legal profession nor in its literature do we detect the slightest inkling of this--the genuine--“source” of valid law.

And consequently we possess a private law that rests on the shadowy foundations of _the Late Classical economy_. The intense embitterment which, in these beginnings of our Civilization’s economy, opposes the name of Capitalism to the name of Socialism comes very largely from the fact that scholarly jurisprudence, and under its influence educated thought generally, have tied up such all-important notions as person, thing, and property to the conditions and the dispositions of Classical life. The book puts itself between the facts and the perception of them. The learned--meaning thereby the book-learned--weigh up everything to this day in scales that are essentially Classical. The man who is merely active and not trained to judgment feels himself misunderstood. He sees the contradiction between the life of the times and the law’s outlook upon it, and calls for the heads of those who--to gain their private ends, as he thinks--have promoted this opposition.

Again the question is: By whom and for whom is Western law made? The Roman prætor was a landowner, a military officer, a man experienced in administrative and financial questions; and it was just this experience that was held to qualify him for the inseparable functions of expounder and maker of the law. The peregrin prætor developed his aliens’ law as a law of commercial intercourse adapted to the Late Classical megalopolis--without plan, without tendency, out of the cases that came before him and nothing else.

But the Faustian will-to-duration demands a book, something valid “for evermore,”[123] a system that is intended to provide in advance for every possible case, and this book, a work of learning, necessarily called for a scholarly class of jurists and judges--the doctors of the faculties, the old German legal families, and the French “_noblesse de robe_.” The English judges, who number hardly over a hundred,[124] are drawn indeed from an upper class of advocates (the “barristers”), but they actually rank above many members of the Government.

A scholar-class is alien to the world, and despises experience that does not originate in thought. Inevitably conflict arises between the “state of knowledge” as the scholar will accept it and the flowing custom of practical life. That manuscript of the Pandect of Irnerius became, and for centuries remained, the “world” in which learned jurists lived. Even in England, where there are no law faculties (in the European sense), it was exclusively the legal profession that controlled further growth, so that even here the development of legal ideas diverged from the development of general life.

Thus what we have hitherto called juristic science is in fact either the philology of law-language, or the scholarship of law-ideas. It is now the only science that still continues to deduce the meaning of life from “eternally valid” principles. “The German jurisprudence of to-day,” says Sohm,[125] “represents very largely indeed an inheritance from mediæval Scholasticism. We have not yet begun to consider in deep earnest the bearing of the basic values of the _actual_ life about us upon legal theory. We do not even yet know what these values are.”

Here, then, is the task that German thought of the future has to perform. From the practical life of the present it has to develop the deepest principles of that life and elevate them into basic law-ideas. If our great arts lie behind us, our great jurisprudence is yet to come.

For the work of the nineteenth century--however creative that century believed itself to be--was merely preparatory. _It freed us from the book of Justinian, but not from the concepts._ The ideologues of Roman law among scholars no longer count, but scholarship of the old cast remains. It is another kind of jurisprudence that is needed now to free us from the schematism of these concepts. Philological expertness must give place to social and economic.

A glance at German civil and penal law will make the position clear. They are systems ringed with a chaplet of minor laws--it was impossible to embody the material of these in the main law. Conceptually, and therefore syntactically, that which could not be understood in terms of the Classical scheme separates itself from that which can be so understood.

How was it that in 1900 the theft of electric power--after grotesque discussions as to whether the matter in dispute was a corporeal thing[126]--had to be dealt with under an _ad hoc_ statute? Why was it impossible to work the substance of patent law into the ensemble of the law about things? Why was copyright law unable conceptually to differentiate the intellectual creation, its communicable form the manuscript, and the objective product in print? Why, in contradiction with the law of things, had the artistic and the material property in a picture to be distinguished by separating acquisition of the original from acquisition of the right to reproduce it? Why is the misappropriation of a business idea or a scheme of organization unpunishable, and theft of the piece of paper on which it is set forth punishable? Because even to-day we are dominated by the Classical idea of the material thing.[127] We _live_ otherwise. Our instinctive experience is subject to _functional_ concepts, such as working power, inventiveness, enterprise, such as intellectual and bodily, artistic and organizing, energies and capacities and talents. In our physics (of which the theory, advanced though it is, is but a copy of our present mode of life) the old idea of a body has in principle ceased to exist--as in this very instance of electrical power. Why is our law conceptually helpless in the presence of the great facts of modern economics? Because _persons, too_, are known to it _only as bodies_.[128]

If the Western jurisprudence took over ancient words, yet only the most superficial elements of the ancient meanings still adhered to them. The consistency of the text disclosed only the _logical_ use of the words, not the life that underlay them. No practice can reawaken the silent metaphysic of old jural ideas. No laws in the world make this last and deepest element explicit, because--just because--it is self-evident. In all of them the essential is tacitly presupposed; in application it is not only the formula but also, and primarily, the inexpressible element beneath it that the people inwardly understands and can practise. Every law is, to the extent that it would be impossible to exaggerate, customary law. Let the statute define the words; it is life that explains them.

If, however, a scholars’ law-language of alien origin and alien scheme tries to bind the native and proper law, the ideas remain void and the life remains dumb. Law becomes, not a tool, but a burden, and actuality marches on, not with, but apart from legal history.

And thus it is that the law-material that our Civilization needs fits only in externals, or even not at all, with the Classical scheme of the law-books, and for the purposes of our proper jurisprudence and our educated thought generally is still formless and therefore unavailable.

Are persons and things, in the sense of present-day legislation, law-_concepts_ at all? No! They merely serve to draw the ordinary distinction, the zoölogical distinction, so to say, between man and the rest. But of old the whole metaphysic of Classical being adhered to the notion of “_persona_.” The distinction between man and deity, the essence of the Polis, of the hero, of the slave, the Cosmos of stuff and form, the life-ideal of Ataraxia, were the self-evident premisses, and these premisses have for us completely perished. In our thought the word “property” is tied up with the Classical _static_ definition, and consequently, in every application to the dynamism of our way of living it falsifies. We leave such definitions to the world-shy abstract professors of ethics, jurists, and philosophers and to the unintelligent debate of political doctrinaires--and this although the _whole_ understanding of the economic history of this day _rests upon the metaphysic of this one notion_.

It must be emphasized then--and with all rigour--that Classical law was a law of _bodies_, while ours is a law of _functions_. The Romans created a juristic statics; our task is juristic dynamics. For us persons are not bodies, but units of force and will; and things are not bodies, but aims, means, and creations of these units. The Classical relation between bodies was positional, but the relation between forces is called action. For a Roman the slave was a thing which produced new things. A writer like Cicero could never have conceived of “intellectual property,” let alone property in a practical notion or in the potentialities of talent; for us, on the contrary, the organizer or inventor or promoter is _a generative force which works upon other, executive, forces_, by giving direction, aim, and means to their action.[129] Both belong to economic life, not as possessors of things, but as carriers of energies.

The future will be called upon to transpose our entire legal thought into alignment with our higher physics and mathematics. Our whole social, economic, and technical life is waiting to be understood, at long last, in this wise. We shall need a century and more of keenest and deepest thought to arrive at the goal. And the prerequisite is a wholly new kind of preparatory training in the jurist. It demands:

1. An immediate, extended, and practical experience in the economic
life of the present.

2. An exact knowledge of the legal history of the West, with
constant comparison of German, English, and “Roman” development.

3. Knowledge of Classical jurisprudence, not as a model for
principles of present-day validity, but as a brilliant example of
how a law can develop strong and pure out of the _practical life_
of its time.

Roman law has ceased to be our source for principles of eternal validity. But the relation between Roman existence and Roman law-ideas gives it a renewed value for us. We can learn from it how we have to build up _our_ law out of _our_ experiences.