ORIGIN AND LANDSCAPE
(C)
THE RELATIONS BETWEEN THE CULTURES
I
Although consideration of the Cultures themselves should logically
precede that of the relations between them, modern historical
thought generally reverses the order. The less it really knows
of the life-courses which together make up a seeming unity of
world-happenings, the more zealously it searches for life in the
web of relations, and the less it understands even of these. What a
wealth of psychology there is in the probings, rejections, choices,
transvaluations, errors, penetrations, and welcomings!--and not only
between Cultures which immediately touch one another, wonder at one
another, fight one another, but also as between a living Culture and
the form-world of a dead one whose remains still stand visible in
the landscape. And how narrow and poor, on the other hand, are the
conceptions which the historians label “influence,” “continuity,” and
“permanent effects”!
This is pure nineteenth century. What is sought is just a chain of
causes and effects. Everything follows and nothing is prime. Since
every young Culture superficially shows form-elements of older
Cultures, these elements are supposed to have had continuing effect
(_fortgewirkt_), and when a set of such effects has been strung
together, the historian regards it with satisfaction as a sound piece
of work.
At bottom, this mode of treatment rests upon that idea which inspired
the great Gothics long ago, the idea of a significant singleness in
the history of all mankind. They saw how, on earth, men and peoples
changed, but ideas stayed, and the powerful impressiveness of the
picture has not worn itself out even to-day. Originally it was seen as
a plan that God was working out by means of the human instrument. And
it could still be regarded as such at a far later stage, in fact so
long as the spell of the “ancient-mediæval-modern” scheme lasted and
its parade of permanence prevented us from noting that actuality was
ever changing. But meantime our outlook also has altered and become
cooler and wider. Our knowledge has long overpassed the limits of
this chart, and those who are still trying to sail by it are beating
about in vain. It is not products that “influence,” but creators that
absorb. Being has been confused with waking-being, life with the means
by which it expresses itself. The critical thought, or even simple
waking-consciousness, sees everywhere theoretical units subjected to
motion. That is truly dynamic and Faustian, for in no other Culture
have men imagined history thus. The Greek, with his thoroughly
corporeal understanding of the world, would never have traced “effects”
of pure expression-units like “Attic drama” or “Egyptian art.”
Originally what happens is that a name is given to a _system of
expression-forms_ conjuring up in our minds a particular complex of
relations. But this does not last long, and soon one is suppositing
{sic} under the name a being, and under the relation an effect. When
we speak to-day of Greek philosophy, or Buddhism, or Scholasticism,
we mean something that is somehow living, a power-unit that has
grown and grown until it is mighty enough to take possession of men,
to subject their waking-consciousness and even their being, and in
the end to force them into an active conformity, which prolongs the
direction followed by its own “life.” It is a whole mythology, and,
significantly, it is only men of the Western Culture--the only mankind
that lives with and in this picture is the Western--whose myth contains
plenty of dæmons of this sort--“electricity” and “positional energy,”
for example.
In reality these systems only exist in the human waking-consciousness,
and they exist as modes of activity. Religion, science, art, are
_activities of waking-consciousness_ that are based on a being. Faith,
meditation, creation, and whatever of visible activity is required
as outcome of these invisibles--as sacrifice, prayer, the physical
experiment, the carving of a statue, the statement of an experience
in communicable words--are activities of the waking-consciousness and
nothing else. Other men see only the visible and hear only words. In
so doing they experience something in themselves, but they cannot give
any account of the relation between this experience and that which the
creator lived in himself. We see a form, but we do not know what in the
other’s soul begat that form; we can only have some belief about the
matter, and we believe by putting in our own soul. However definitely
and distinctly a religion may express itself in words, they are words,
and the hearer puts his own sense into them. However impressive the
artist’s notes or colours, the beholder sees and hears in them only
himself, and if he cannot do so, the work is for him meaningless. (The
extremely rare and highly modern gift, possessed by a few intensely
historical men, of “putting oneself in the other’s place” need not be
considered in this connexion.) The German whom Boniface converted did
not transfer himself into the missionary’s soul. It was a springtide
quiver that passed in those days through the whole young world of the
North, and what it meant was that each man found suddenly in conversion
a language wherein to express his own religiousness. Just so the eyes
of a child light up when we tell it the name of the object in its hand.
It is not, then, microcosmic units that move, but cosmic entities that
pick amongst them and appropriate them. Were it otherwise--were these
systems very beings that could exercise an activity (for “influence” is
an organic activity)--the picture of history would be quite other than
what it is. Consider how every maturing man and every living Culture
is continuously bathed in innumerable potential influences. Out of all
these, only some few are _admitted_ as such--the great majority are
not. Is choice concerned with the works, or with the men?
The historian who is intent upon establishing causal series counts
only the influences that are present, and the other side of the
reckoning--those that are not--does not appear. With the psychology of
the “positive” influences is associated that of the “negative.” This
is a domain into which no one has yet ventured, but here, if anywhere,
there are fruits to be reaped, and it must be tackled unless the answer
to the whole question is to be left indeterminate; for if we try to
evade it, we are driven into illusory visions of world-historical
happening as a continuous process in which everything is properly
accounted for. Two Cultures may touch between man and man, or the man
of one Culture may be confronted by the dead form-world of another as
presented in its communicable relics. In both cases the agent is the
man himself. The closed-off act of A can be vivified by B only out of
his own being, and _eo ipso_ it becomes B’s, his inward property, his
work, and part of himself. There was no movement of “Buddhism” from
India to China, but an acceptance of part of the Indian Buddhists’
store of images by Chinese of a certain spiritual tendency, who
fashioned out a _new_ mode of religious expression having meaning for
Chinese, and only Chinese, Buddhists. What matters in all such cases
is not the original meanings of the forms, but the forms themselves,
as disclosing to the active sensibility and understanding of the
observer potential modes of his own creativeness. Connotations are not
transferable. Men of two different kinds are parted, each in his own
spiritual loneliness, by an impassable gulf. Even though Indians and
Chinese in those days both felt as Buddhists, they were spiritually as
far apart as ever. The same words, the same rites, the same symbol--but
two different souls, each going its own way.
Searching through all Cultures, then, one will always find that
the continuation of earlier creations into a later Culture is only
apparent, and that in fact the younger _being_ has set up a few (very
few) relations to the older _being_, always without regard to the
original meanings of that which it makes its own. What becomes, then,
of the “permanent conquests” of philosophy and science? We are told
again and again how much of Greek philosophy still lives on to-day,
but this is only a figure of speech without real content, for first
Magian and then Faustian humanity, each with the deep wisdom of its
unimpaired instincts, rejected that philosophy, or passed unregarding
by it, or retained its formulæ under radically new interpretations.
The naïve credulity of erudite enthusiasm deceives itself here--Greek
philosophic notions would make a long catalogue, and the further it is
taken, the more vanishingly small becomes the proportion of the alleged
survivals. Our custom is simply to overlook as incidental “errors”
such conceptions as Democritus’s theory of atomic images,[60] the very
corporeal world of Plato’s “ideas,” and the fifty-two hollow spheres
of Aristotle’s universe, as though we could presume to know what the
dead meant better than they knew themselves! These things are truths
and essential--only, not for us. The sum total of the Greek philosophy
that we possess, actually and not merely superficially, is practically
nil. Let us be honest and take the old philosophers at their word;
not one proposition of Heraclitus or Democritus or Plato is true for
us unless and until we have accommodated it to ourselves. And how
much, after all, have we taken over of the methods, the concepts, the
intentions, and the means of Greek science, let alone its basically
incomprehensible terms? The Renaissance, men say, was completely under
the “influence” of Classical art. But what about the form of the
Doric temple, the Ionic column, the relation of column to architrave,
the choice of colour, the treatment of background and perspective in
painting, the principles of figure-grouping, vase-painting, mosaic,
encaustic, the structural element in statuary, the proportions of
Lysippus? Why did all this exercise no “influence?”
_Because that which one_ (here, the Renaissance artist) _wills to
express is in him a priori_. Of the stock of dead forms that he had in
front of him, he really saw only the few that he wanted to see, and
saw them as he wanted them--namely, in line with his own intention
and not with the intention of the original creator, for no living art
ever seriously considers that. Try to follow, element by element, the
“influence” of Egyptian plastic upon early Greek, and you will find
in the end that there is none at all, but that the Greek will-to-form
took out of the older art-stock some few characteristics that it would
in any case have discovered in some shape for itself. All round the
Classical landscape there were working, or had worked, Egyptians,
Cretans, Babylonians, Assyrians, Hittites, Persians, and Phœnicians,
and the works of these peoples--their buildings, ornaments, art-works,
cults, state-forms, scripts, and sciences--were known to the Greeks
in profusion. But how much out of all this mass did the Classical
soul extract as its own means of expression? I repeat, it is only the
relations that are _accepted_ that we observe. But what of those that
were _not_ accepted? Why, for example, do we fail to find in the former
category the pyramid, pylon, and obelisk of Egypt, or hieroglyphic, or
cuneiform? What of the stock of Byzantium and of the Moorish East was
_not_ accepted by Gothic art and thought in Spain and Sicily? It is
impossible to overpraise the wisdom (quite unconscious) that governed
the choice and the unhesitating transvaluation of what was chosen.
Every relation that was accepted was not only an exception, but also a
misunderstanding, and the inner force of a Being is never so clearly
evidenced as it is in this _art of deliberate misunderstanding_. The
more enthusiastically we laud the principles of an alien thought, the
more fundamentally in truth we have denatured it. Only consider the
praises addressed by the West to Plato! From Bernard of Chartres and
Marsilius Ficinus to Goethe and Schelling! And the more humble our
acceptance of an alien religion, the more certain it is that that
religion has already assumed the form of the new soul. Truly, someone
ought to have written the history of the “three Aristotles”--Greek,
Arabian, and Gothic--who had not one concept or thought in common.
Or the history of the transformation of Magian Christianity into
Faustian! We are told in sermon and book that this religion extended
from the old Church into and over the Western field without change of
essence. Actually, Magian man evolved out of the deepest depths of his
dualistic world-consciousness a language of his own religious awareness
that we call “the” Christian religion. So much of this experience
as was communicable--words, formulæ, rites--was accepted by the man
of the Late-Classical Civilization as a means of expression for his
religious need; then it passed from man to man, even to the Germans of
the Western pre-Culture, in words always the same and in sense always
altering. Men would never have dared to _improve upon_ the original
meanings of the holy words--it was simply that they did not know these
meanings. If this be doubted, let the doubter study “the” idea of
Grace, as it appears under the dualistic interpretation of Augustine
affecting a substance in man, and under the dynamic interpretation of
Calvin, affecting a will in man. Or that Magian idea, which we can
hardly grasp at all, of the consensus (Arabic _ijma_)[61] wherein, as
a consequence of the presence in each man of a _pneuma_ emanating from
the divine _pneuma_, the unanimous opinion of the elect is held to be
immediate divine Truth. It was this that gave the decisions of the
early Church Councils their authoritative character, and it underlies
the scientific methods that rule in the world of Islam to this day.
And it was because Western men did not understand this that the Church
Councils of later Gothic times amounted, for him, to nothing more than
a kind of parliament for limiting the spiritual mobility of the Papacy.
This idea of what a Council meant prevailed even in the fifteenth
century--think of Constance and Basel, Savonarola and Luther--and
in the end it disappeared, as futile and meaningless, before the
conception of Papal Infallibility. Or, again, the idea, universal
in the Early Arabian world, of the resurrection of the flesh, which
again presupposed that of divine and human _pneuma_. Classical man
assumed that the soul, as the form and meaning of the body, was somehow
co-created herewith, and Greek thought scarcely mentions it. Silence
on a matter of such gravity may be due to one or the other of two
reasons--the idea’s not being there at all, or being so self-evident
as not to emerge into consciousness as a problem. With Arabian man it
was the latter. But just as self-evident for him was the notion that
his _pneuma_ was an emanation from God that had taken up residence in
his body. Necessarily, therefore, there had to be something from which
the human soul should rise again on the Day of Judgment, and hence
resurrection was thought of as ἔκ νεκρῶν, “out of the corpses.” This,
in its deeper meaning, is utterly incomprehensible for the West. The
words of Holy Scripture were not indeed doubted, but unconsciously
another meaning was substituted by the finer minds amongst Catholics;
this other meaning, unmistakable already in Luther and to-day quite
general, is the conception of immortality as the continued existence to
all eternity of the soul as a centre of force. Were Paul or Augustine
to become acquainted with our ideas of Christianity, they would
reject all our dogmas, all our books, and all our concepts as utterly
erroneous and heretical.
As the strongest example of a system that to all appearance has
travelled unaltered through two millennia, and yet actually has passed
through three whole courses of evolution in three Cultures, with
completely different meanings in each, we may take _Roman law_.
II
_Law_, in the Classical world, _is law made by citizens for citizens_
and presupposes that the state-form is that of the Polis. It was this
basic form of public life that led--and self-evidently--to the notion
of the person as identical with the man who, added to others like him,
made up the body (σῶμα)[62] of the State. From this formal fact of
Classical world-feeling grew up the whole structure of Classical law.
_“Persona” then is a specifically Classical notion, possessing meaning
and valency only in the Classical Culture._ The individual person is
a body which belongs to the stock of the Polis. It is with reference
to him that the law of the Polis is ordered, downwards into the law
of Things--with, as a marginal case, the slave who was body, but not
person--and upward into the law of Gods--with, as a marginal case, the
hero who from being person had attained godhead and the legal right
to a cult, like Lysander and Alexander in the Greek cities and _Divus
Julius_ and his successors in Rome. This tendency, becoming more and
more definite in the development of Classical jurisprudence, explains
also the notion of _capitis deminutio media_, which is so alien to our
Western ideas; for we can imagine a person (in our sense of the word)
as deprived of certain rights and even of all rights, but the Classical
man under this punishment _ceased to be a person_ although living on
as a body. And the specifically Classical idea of the thing, _res_, is
only intelligible in contrast to and as the object of _persona_.
As Classical religion was State religion through and through, there
is no distinction made as to the fount of law; real law and divine
law were made, like personal law, by the citizen, and the relations
of things and of gods to persons were precise and definite. Now, it
was a fact of decisive significance for the Classical jurisprudence
that it was always the product of immediate public experience--and,
moreover, not the professional experience of the jurists, but the
practical everyday experience of men who counted in political and
economic life generally. The man who followed the public career
in Rome had necessarily to be jurist, general, administrator, and
financial manager. When he gave judgment as prætor, he had behind him
a wide experience of many fields other than law. A judicial _class_,
professionally (let alone theoretically) specialized in law as its sole
activity, was entirely unknown to the Classical. The whole outlook
of the later jurisprudence was determined by this fact. The Romans
were here neither systematists nor historians nor theorists, but just
splendidly practical. Their jurisprudence is an _empirical science
of individual cases_, a refined technique, and not in the least a
structure of abstractions.[63]
It would give an incorrect idea to oppose Greek and Roman law to
one another as quantities of the same order. Roman law in its whole
development is an individual city law, one amongst hundreds of such,
and Greek law as a unity never existed at all. Although Greek-speaking
cities very often had similar laws, this did not alter the fact that
the law of each was its own and no other’s. Never did the idea of
a general Doric, still less a general Hellenic, legislation arise.
Such notions were wholly alien to Classical thought. The _jus
civile_ applied only to Quirites--foreigners, slaves and the whole
world outside the city[64] simply did not count in the eyes of the
law, whereas even the _Sachsenspiegel_[65] evidences already our
own deep-felt idea that there can only really be one law. Until far
into Imperial times the strict distinction was maintained between
the _jus civile_ of citizens and the _jus gentium_ for “other
people” who came within the cognizance of Rome’s jurisdiction as
sojourners.[66] (It need hardly be added that this “law of nations”
has no sort of resemblance to that which we call by the same name.)
It was only because Rome as a unit-city attained--as under other
conditions Alexandria might have attained--to “Imperium” over the
Classical world that Roman law became pre-eminent, not because of its
intrinsic superiority, but firstly through Rome’s political success
and afterwards because of Rome’s monopoly of practical experience on
the large scale. The formation of a general Classical jurisprudence of
Hellenistic cast--if we are entitled to call by that name an affinity
of spirit in a large number of separate legal systems--falls in a
period when Rome was still politically a third-rate power. And when
Roman law began to assume bigger forms, this was only one aspect of
the fact that Roman intellect had subjugated Hellenism. The work of
forming later Classical law passed from Hellenism to Rome--i.e., from
a sum of city-states, which one and all had been impressively made
aware of their individual impotence, to one single city whose whole
activity was in the end devoted to the upholding and exploitation of
an effective primacy. Thus it came about that Hellenism never formed
a jurisprudence in the Greek tongue. When the Classical world entered
upon a stage in which it was ripe for this science (the latest of all),
there was but _one_ lawgiving city that counted in the matter.
In reality, insufficient regard has been paid to the fact that Greek
and Roman law are not parallel in time but successive. Roman law is
the younger and presupposes the long experience of the elder;[67] it
was built up, in fact, late and, with this exemplar before it, very
swiftly. It is not without significance that the flowering-time of the
Stoic philosophy, which deeply affected juridical ideas, followed that
of Greek, but preceded that of Roman, law.
III
This jurisprudence, however, was built up by the mind of an intensely
ahistorical species of man. Classical law, consequently, is law _of
the day and even the moment_; it was in its very idea occasional
legislation for particular cases, and when the case was settled, it
ceased to be law. To extend its validity over subsequent cases would
have been in contradiction to the Classical sense of the present.
The Roman prætor, at the beginning of his year of office, issued an
edict in which he set forth the rules that he intended to follow,
but his successor next year was in nowise bound to them. And even
this limitation of a year on the validity of the rules did not mean
that this was actually the duration of the rules. On the contrary
(particularly after the _Lex Æbutia_) the prætor formulated in each
individual case the concrete rule of law for the judges[68] to whom he
remitted the matter for judgment, which had to be according to this
rule and no other. That is, the prætor produced, and indeed generated,
a _present_ law without duration.[69]
Similar in appearance, but so profoundly different in meaning as to
leave no doubt as to the great gap which is set between Classical and
Western Law, is that inspired and truly Germanic notion of English
jurisprudence, the creative power of the judge who “declares” the law.
His business is to apply a law which in principle possesses eternal
validity. Even the application of the existing body of laws he can
regulate, according to the situations disclosed in the course of the
case, by means of his “rules” (which have nothing in common with the
prætor’s). And if he should conclude in the presence of a particular
set of facts that current law is defective in respect of these, he
can _fill the gap at once_, and thus in the very middle of a trial
create new law, which (if concurred in by the judicial body in the
due forms) _becomes thereafter part and parcel of the permanent stock
of law_. This is what makes it so completely un-Classical. In the old
jurisprudence, the gradual formation of a stock of rules was due purely
to the fact that public life followed a substantially homogeneous
course throughout a particular period, and produced again and again the
same situations to be dealt with--rules _not_ deliberately invested
with validity for the future, but more or less recreated again and
again as empirical rulings _ad hoc_. The sum of these rulings--not a
system, but a collection--came to constitute “the law” as we find it in
the later legislation by prætor’s edict, each successive prætor having
found it practically convenient to take over substantial portions of
his predecessor’s work.
Experience, then, means for the ancient lawgiver something different
from what it means to us. It means, not the comprehensive outlook over
a consistent mass of law that contains implicitly every possible case,
associated with practical skill in applying it, but the experimental
knowledge that certain jural situations are for ever recurring, so that
one can save oneself the trouble of forming new law on every occasion.
The genuine Classical form for the slow accretion of legal material
is an almost automatic summation of individual νομοί _leges, edicta_,
as we find it in the heyday of the Roman prætor. All the so-called
legislations of Solon, Charondas, and the Twelve Tables are nothing
but occasional collections of such edicts as had been found to be
useful. The Law of Gortyn,[70] which is more or less contemporary with
the Twelve, is a supplement to some older collection. A newly-founded
city would promptly provide itself with such a collection, and in
the process a certain amount of dilettantism would slip in (cf. the
lawmakers satirized by Aristophanes in _The Birds_). But there is never
system in them, still less any intention of establishing enduring law
thereby.
In the West it is conspicuously the other way about. The tendency is
from the first to bring the entire living body of law into a general
code, ordered for ever and exhaustively complete, containing in advance
the decision of every conceivable future problem.[71] All Western law
bears the stamp of the future, all Classical the stamp of the moment.
IV
But this, it may be said, is contradicted by the fact that there
actually were Classical law-works compiled by professional jurists
for permanent use. Undoubtedly so. But we must remember that we are
completely ignorant of Early Classical law (1100-700) and it is pretty
certain that the customary law of the country-side and the nascent
town was never noted down as that of the Gothic age was set forth
in the _Sachsenspiegel_ or that of the Early Arabian in the _Syrian
Law-book_.[72] The earliest stratification that we can now detect
consists of the collections (from 700 B.C.) ascribed to mythical or
semi-mythical personages like Lycurgus, Zaleucus, Charondas, and
Dracon,[73] and certain Roman kings.[74] That these existed the form
of the saga shows, but of their real authors, the actual process of
their codification, and their original contents even the Greeks of the
Persian War period were ignorant.
A second stratification, corresponding to Justinian’s code and to the
“Reception” of Roman Law in Germany, is connected with the names of
Solon (600), Pittacus (550), and others. Here the laws have already
attained to a structure and are inspired by the city; they are
described as “politeiai,” “nomoi,” in contrast to old “thesmai” and
“rhetrai.”[75] In reality, therefore, we only know the history of
_late_ Classical law. Now, why these sudden codifications? A mere look
at these names shows that at bottom they were not processes of putting
down the results of pure experience, but _decisions of political power
problems_.
It is a grave error to suppose that a law that surveys all things
evenly and without being influenced by political and economic
interests can exist at all. Such a state of things can be pictured,
and is always being pictured, by those who suppose that the imagining
of political possibilities is a political activity. But nothing
alters the fact that such a law, born of abstractions, does not
exist in real history. Always the law contains in abstract form the
world-picture of its author, and every historical world-picture
contains a political-economic _tendency_ dependent, not upon what
this man or that thinks, but upon what is practically intended by the
class which in fact commands the power and, with it, the legislation.
Every law is established by a class in the name of the generality.
Anatole France once said that “our law in majestic equality forbids
the rich no less than the poor to steal bread and to beg in the
street.”[76] A one-sided justice no doubt. But equally the other
side will always try to win sole authority for laws derived from
_its_ outlook upon life. These legislative codes are one and all
political acts, and party-political acts at that--in the case of
Solon a democratic constitution (πολιτεία) combined with private laws
(νομοί) of the same stamp, in that of Dracon and the Decemvirs[77]
an oligarchic constitution fortified by private law. It was left
to Western historians, accustomed to their own durable law, to
undervalue the importance of this connexion; Classical man was under
no misapprehension as to what really happened in these cases. The
product of the Decemvirs was in Rome the last code of purely patrician
character. Tacitus calls it the end of right law (“_finis æqui juris_,”
_Annals_, III, 27). For, just as the fall of the Decemvirs was followed
very significantly by the rise of another Ten, the Tribunes, so
immediately the _jus_ of the Twelve Tables and the constitution on
which it was founded began to be attacked by the undermining process
of the _lex rogata_ (people’s law), which set itself with Roman
constancy to do what Solon had achieved in one act in the case of
Dracon’s work, the πατρίος πολιτεία which was the law-ideal of the
Attic oligarchy. Thenceforward Dracon and Solon were the “slogans”
in the long battle between Oligarchy and Demos, which in Rome meant
Senate and Tribunate. The Spartan constitution associated with the
name “Lycurgus” not only stood for the ideal of Dracon and the Twelve
Tables, but concreted it. We can see, parallel with the closely related
course of events in Rome, the tendency of the two Spartan kings to
evolve from the condition of Tarquinian tyrants to that of tribunes of
the Gracchan kind; the fall of the last Tarquins or the institution
of the Decemvirs--a _coup d’état_ of one kind or another against the
tribunician tendency[78]--corresponds more or less to the fall of
Cleomenes (488) and of Pausanias (470); and the revolution of Agis III
and Cleomenes III (about 240) aligns itself with the political activity
of C. Flaminius, which began only a few years later. But never in
Sparta were the kings able to achieve any thorough-going success over
the senatorial element represented by the Ephors.
In the period of these struggles, Rome had become a megalopolis of the
late-Classical type. The rustic instincts were more and more pushed
back by the intelligence of the city.[79] Consequently from about 350
we find side by side with the _lex rogata_ of the people the _lex
data_, the administrative law, of the prætor. With this the Twelve
Tables idea drops out of the contest and it is the prætor’s edict that
becomes the football of the party battle.
It did not take long for the prætor to become the centre of both
legislation and judicial practice. And presently, corresponding to the
political extension of the city’s power, the jurisdiction of the prætor
and the field of his _jus civile_--the law of the citizens--begin
to diminish in significance and the peregrin prætor with his _jus
gentium_--the law of the alien--steps into the foreground. And when
finally the whole population of the Classical world, save the small
part possessing Roman citizenship, was comprised in the field of this
alien law, the _jus peregrinum_ of the city of Rome became practically
an imperial law. All other cities--and even Alpine tribes and migrant
Bedouin clans were _civitates_ from the administrative point of
view--retained their local laws only as supplements, not alternatives,
to the peregrin law of Rome.
It marked the close of Classical law-making, therefore, when Hadrian
(about A.D. 130) introduced the _Edictum perpetuum_, which gave final
form to the well-established corpus of the annual pronouncements of the
prætors and forbade further modifications thereof. It was still, as
before, the prætor’s duty to publish the “law of his year,” but, even
though this law had no greater degree of validity than corresponded to
his administrative powers and was not the law of the Empire, he was
obliged thenceforth to stick to the established text.[80] It is the
very symbol of the petrified “Late” Civilization.[81]
With the Hellenistic age began jurisprudence, the _science_ of law,
the systematic comprehension of the law which men actually apply.
Since legal thought presupposes a substance of political and economic
relations, in the same way as mathematical thought presupposes physical
and technical elements of knowledge,[82] Rome very soon became _the
home of Classical jurisprudence_. Similarly in the Mexican world it
was the conquering Aztecs whose academies (e.g., Tezcuco) made law
the chief subject of study. Classical jurisprudence was the Roman’s
science, and his only one. At the very moment when the creative
mathematic closes off with Archimedes, juristic literature begins
with Ælius’s _Tripertita_, a commentary on the Twelve (198 B.C.).[83]
The first systematic private law was written by M. Scævola about
100. The genuine maturity of Classical law is in the two centuries
200-0--although we to-day, with quaint perversity, apply the time to a
period which was really that of Early Arabian law. And from the relics
of these two literatures we can measure the greatness of the gap that
separates the thought of two Cultures. The Romans treat only of cases
and their classification; they never analyse a basic idea such as,
for instance, judicial error. They distinguish carefully the sorts of
contracts, but they have no conception of Contract as an idea, or of
any theories as to invalidity or unsoundness. “Taking everything into
account,” says Lenel,[84] “it is clear that the Romans cannot possibly
be regarded as exemplars of scientific method.”
The last phase is that of the schools of the Sabiniani and Proculiani
(Augustus to about 160 A.D.). They are scientific schools like the
philosophical schools in Athens, and in them, possibly, the expiring
stages of the conflict between the senatorial and the tribunician
(Cæsarian) conceptions of law were fought, for amongst the best of
the Sabiniani were two descendants of Cæsar’s slayers and one of the
Proculiani was picked upon by Trajan as his potential successor. While
the method was to all intents and purposes settled and concluded, the
practical fusion of the citizen’s statute-law (_jus civile_) and the
prætor’s edict (_jus honorarium_) was carried out here.
The last landmark of Classical jurisprudence, so far as we know, was
the _Institutes_ of Gaius (about 161).
_Classical law is a law of bodies._ In the general stock composing
the world it distinguishes bodily Persons and bodily Things and, like
a sort of Euclidean mathematic of public life, establishes ratios
between them. The affinity between mathematical and legal thought is
very close. The intention, in both, is to take the prima facie data, to
separate out the sensuous-incidental, and to find the intellectually
basic principle--the _pure_ form of the object, the _pure_ type of
the situation, the _pure_ connexity of cause and effect. Life, in
the Classical, presents itself to the critical waking-consciousness
of the Classical man in a form penetrated with Euclidean character,
and the image that is generated in the legal mind is one of bodies,
of positional relations between bodies, and of reciprocal effects of
bodies by contact and reaction--just as with Democritus’s atoms. It is
juristic statics.[85]
V
The first creation of “Arabian” law was _the concept of the incorporeal
person_.
Here is an element entirely absent in Classical law,[86] and appearing
quite suddenly in the “Classical” jurists (who were all Aramæans),
which cannot be estimated at its full value, or in its symbolic
importance as an index of the new world-feeling, unless we realize the
full extent of the field that this Arabian law covered.
The new landscape embraces Syria and northern Mesopotamia, southern
Arabia and Byzantium. In all these regions a new law was coming into
being, an oral or written customary law of the same “early” type
as that met with in the _Sachsenspiegel_. Wonderfully, the _law of
individual cities_ which is so self-evident on Classical ground is
here silently transmuted into a _law of creed-communities_. It is
Magian, magic, through and through. Always _one_ Pneuma, _one_ like
spirit, _one_ identical knowledge and comprehension of whole and
sole truth, welds the believers of the same religion into a unit
of will and action, _into one juristic person_. A juristic person
is thus a collective entity which has intentions, resolutions, and
responsibilities as an entity. In Christianity we see the idea already
actual and effective in the primitive community at Jerusalem,[87] and
presently it soars to the conception of a triune Godhead of three
Persons.[88]
Before Constantine, even, the Late Classical law of imperial decrees
(_constitutiones, placita_) though the Roman form of city law was
strictly kept, was genuinely a law for the _believers of the “Syncretic
Church,”_[89] that mass of cults perfused by one single religiousness.
In Rome itself, it is true, law was conceived of by a large part of
the population as city-state law, but this feeling became weaker and
weaker with every step towards the East. The fusion of the faithful
into a single _jural community_ was effected in express form by the
Emperor-cult, which was religious law through and through. In relation
to this law Jews and Christians[90] were infidels who ensconced
themselves with their own laws in another field of law. When in 212
the Aramæan Caracalla, by the _Constitutio Antoniana_, gave Roman
citizenship to all inhabitants except _dediticii_ peregrins,[91] the
form of his act was purely Classical, and no doubt there were plenty of
people who understood it in the Classical spirit--i.e., as literally
an incorporation of the citizens of every other city in the city of
Rome. But the Emperor himself conceived it quite otherwise. It made
everyone subject to the “Ruler of the Faithful,” the head of the
cult-religion venerated as _Divus_. With Constantine came the great
change; he turned Imperial Caliph law on to the creed-community of
Christianity in lieu of that of Syncretism, and thereby _constituted
the Christian Nation_. The labels “devout” and “unbeliever” changed
places. From Constantine onwards the quiet transformation of “Roman”
law into _orthodox Christian law_ proceeded more and more decisively,
and it was as such that converted Asiatics and Germans received and
adopted it. Thus a perfectly new law came into being in old forms.
According to the old marriage-law it was impossible for a Roman burgher
to marry the daughter of, say, a Capuan burgher if legal community,
_connubium_, was not in force between the two cities.[92] But now the
question was whether a Christian or a Jew--irrespective of whether he
was Roman, Syrian, or Moor--could legally marry an infidel. For in the
Magian law-world there was no _connubium_ between those of different
faiths. There was not the slightest difficulty about an Irishman
in Constantinople marrying a Negress if both were Christians, but
how could a Monophysite Christian marry a Nestorian maiden who was
his neighbour in their Syrian village? Racially they were probably
indistinguishable, but they belonged to legally different nations.
This Arabian concept of nationality is a new and wholly decisive
fact. The frontiers between “home” and “abroad” lay in the Apollinian
world between every two towns, and in the Magian between every two
creed-communities. What the “enemy,” the peregrin, was to the Roman,
the Pagan was to the Christian, the Amhaarez to the Jew. What the
acquisition of Roman citizenship meant for the Gaul or the Greek in
Cæsar’s time, Christian baptism meant for him now--entry into the
leading nation of the leading Culture.[93] The Persians of the Sassanid
period no longer conceived of themselves, as their predecessors of
Achæmenid times had done, as a unit by virtue of origin and speech, but
as a unit of Mazdaist believers, _vis-à-vis_ unbelievers, irrespective
of the fact that the latter might be of pure Persian origin (as
indeed the bulk of the Nestorians were). So also with the Jews, and
later the Mandæans and Manichæans, and later again the Monophysite
and the Nestorian Christians--each body felt itself a nation, a legal
community, a juristic person in a new sense.
Thus there arises a group of Early Arabian laws, differentiated
according to religions as decisively as Classical laws are
differentiated according to cities. In the realm of the Sassanids
schools arose for the teaching the Zoroastrian law proper to them; the
Jews, who formed an exceedingly large portion of the population from
Armenia to Sabæa, created their proper law in the Talmud, which was
completed and closed some few years before the _Corpus Juris_. Each one
of these Churches had its peculiar jurisdiction, independent of the
geographical frontiers of the moment--as in the East to-day--and the
judge representing the ground-lord judged only cases between parties
of different faiths. The self-jurisdiction of the Jews within the
Empire had never been contested by anyone, but the Nestorians and the
Monophysites also began, very soon after their separation, to create
and to apply laws of their own, and thus by a negative process--i.e.,
by the gradual withdrawal of all heterodox communities--Roman imperial
law came to be the law of the Christians who confessed the same creed
as the Emperor. Hence the importance of the Roman-Syrian law-book,
which has been preserved in several languages. It was probably[94]
pre-Constantinian and written in the chancery of the Patriarch of
Antioch; it is quite unmistakably Early Arabian law in Late Classical
form, and, as its many translations indicate, it owed its currency to
the opposition to the orthodox Imperial Church. It was without doubt
the basis of Monophysite law, and it reigned till the coming of Islam
over a field far larger than that of the _Corpus Juris_.
The question arises, what in such a tapestry of laws could have been
the real practical value of the part of them which was written in
Latin? The law historians, with all the one-sidedness of the expert,
have hitherto looked at this part alone and therefore have not yet
realized that there is a problem here at all. Their texts were “Law”
unqualified, the law that descended from Rome to us, and they were
concerned only to investigate the history of these texts and not their
real significance in the lives of the Eastern peoples. What in reality
we have here is the highly civilized law of an aged Culture forced upon
the springtime of a young one.[95] It came over as learned literature,
and in the train of political developments which were quite other than
they would have been had Alexander or Cæsar lived longer or had Antony
won at Actium. We must look at Early Arabian law from the standpoint
of Ctesiphon and not from that of Rome. The law of the distant West
had long before reached inward fulfilment--could it be here more
than a mere literature? What part did it play, if any, in the active
law-study, law-making, and law-practice of this landscape? And, indeed
we must further ask how much of Roman--or for that matter of Classical
generally--is contained in this literature itself.[96]
The history of this Latin-written law belongs after 160 to the Arabian
East, and it says a great deal that it can be traced in exactly
parallel courses into the history of Jewish, Christian, and Persian
literature.[97] The “Classical” jurists (160-220), Papinian, Ulpian,
and Paul, were Aramæans, and Ulpian described himself with pride as a
Phœnician from Tyre. They came, therefore, from the same population as
the Tannaim who perfected the Mishnah shortly after 200, and most of
the Christian Apologists (Tertullian 160-223). Contemporary with them
is the fixation of canon and text for the New Testament by Christian,
for the Hebrew Old Testament by Jewish,[98] and for the Avesta by
Persian, scholars. It is the high Scholasticism of the Arabian
Springtime. The digests and commentaries of these jurists stand towards
the petrified legal store of the Classical in exactly the same relation
as the Mishnah to the Torah of Moses (and as, much later, the Hadith
to the Koran)--they are “Halakhoth”[99]--a new customary law grasped
in the forms of an authoritative and traditional law-material. The
casuistic method is everywhere the same. The Babylonian Jews possessed
a well-developed civil law which was taught in the academies of Sura
and Pumbeditha. Everywhere a class of law-men formed itself--the
_prudentes_ of the Christians, the rabbis of the Jews, later the ulemas
(in Persian, mollahs) of the Islamic nation--who enunciated opinions,
_responsa_ (Arabic, _Fetwa_). If the Ulema was acknowledged by the
State, he was called “Mufti” (Byzantine, _ex auctoritate principis_).
Everywhere the forms are exactly the same.
About 200 the Apologists pass into the Fathers proper, the Tannaim
into the Amoraim, the great casuists of juridical law (_jus_) into the
exegetes and codifiers of constitutional law (_lex_). The constitutions
of the Emperors, from 200 the sole source of new “Roman” law, are
again a new “Halakhah” laid down over that in the jurists’ writings,
and therefore correspond exactly to the Gemara, which rapidly evolved
as an outlier of the Mishnah. The new tendencies reached fulfilment
simultaneously in the _Corpus Juris_ and the Talmud.
The opposition between _jus_ and _lex_ in Arabian-Latin usage comes
to expression very clearly in the work of Justinian. Institutes and
Digests are _jus_; they have essentially the significance of canonical
texts. Constitutions and Novels are _leges_, new law in the form
of elucidations. The canonical books of the New Testament and the
traditions of the Fathers are related to one another in the same way.
As to the Oriental character of the thousands of constitutions, no
one now has any doubts. It is pure customary law of the Arabian world
that the living pressure of evolution forced under the texts of
the learned.[100] The innumerable decrees of the Christian rulers
of Byzantium, of the Persian of Ctesiphon, of the Jewish (the
Resh-Galuta[101]) in Babylonia, and finally of the Caliphs of Islam
have all exactly the same significance.
But what significance had the _other_ part of pseudo-Classical, the
old jurists’, law? Here it is not enough to explain texts, and we
must know what was the relation between texts, jurisprudence, and
court decisions. It can happen that one and the same law-book is, in
the waking-consciousness of two groups of peoples, equivalent to two
fundamentally different works.
It was not long before it became the habit, not to apply the old laws
of the city of Rome to the fact-material of the given case, but to
quote the jurists’ texts like the Bible.[102] What does this signify?
For our Romanists it is a sign of decadence, but looked at from the
view-point of the Arabian world, it is just the reverse--a proof that
Arabian man did eventually succeed in making an alien and imposed
literature inwardly his own, in the form admissible for his own
world-feeling. With this the completeness of the opposition between the
Classical and the Arabian world-feeling becomes manifest.
VI
Whereas the Classical law was made by burghers on the basis of
practical experience, the Arabian came from God, who manifested
it through the intellect of chosen and enlightened men. The Roman
distinction between _jus_ and _fas_ (such as it was, for the content
even of _fas_ had proceeded from human reflection) became meaningless.
The law, of whatever kind, spiritual or secular, came into being, as
stated in the first words of Justinian’s Digests, _Deo auctore_. The
authoritativeness of Classical laws rests upon their success, that of
the Arabian on the majesty of the name that they bear.[103] But it
matters very considerably indeed in a man’s feelings whether he regards
law as an expression of some fellow man’s will or as an element of the
divine dispensation. In the one case he either sees for himself that
the law is right or else yields to force, but in the other he devoutly
acknowledges (“_Islam_” = to commit, devote). The Oriental does not ask
to see either the practical object of the law that is applied to him or
the logical grounds of its judgments. The relation of the cadi to the
people, therefore, has nothing in common with that of the prætor to the
citizens. The latter bases his decisions upon an insight trained and
tested in high positions, the former upon a spirit that is effective
and immanent in him and speaks through his mouth. But it follows from
this that their respective relations to written law--the prætor’s
to his edict, the cadi’s to the jurists’ texts--must be entirely
different. It is a quintessence of concentrated experience that the
prætor makes his own, but the texts are a sort of oracle that the cadi
esoterically questions. It does not matter in the least to the cadi
what a passage originally meant or why it was framed. He consults the
words--_even the letters_--and he does so not at all for their everyday
meanings, but for the _magic_ relations in which they must stand
towards the case before him. We know this relation of the “spirit” to
the “letter” from the Gnosis, from the early-Christian, Jewish, and
Persian apocalyptic and mystical literature, from the Neopythagorean
philosophy, from the Kabbalah; and there is not the slightest doubt
that the Latin codices were used in exactly the same way in the minor
judicial practice of the Aramæan world. The conviction that the letters
contain secret meanings, penetrated with the Spirit of God, finds
imaginative expression in the fact (mentioned above) that all religions
of the Arabian world formed scripts of their own, in which the holy
books had to be written and which maintained themselves with astounding
tenacity as badges of the respective “nations” even after changes of
language.[104]
But even in law the basis of determining the truth by a majority
of texts is the fact of the consensus of the spiritual elect, the
_ijma_.[105] This theory Islamic science worked out to its logical
conclusions. We seek to find the truth, each for himself, by personal
pondering, but the Arabian savant feels for and ascertains the general
conviction of his associates, which cannot err because the mind of God
and the mind of the community are the same. If _consensus_ is found,
truth is established. “_Ijma_” is the key of all Early Christian,
Jewish, and Persian Councils, but it is the key, too, of the famous
Law of Citations of Valentinian III (426), which the law-men have
universally ridiculed without in the least understanding its spiritual
foundations. The law limits the number of great jurists whose texts
were allowed to be cited to five, and thus set up a canon--in the same
sense as the Old and New Testaments, both of which also were summations
of texts which might be cited as canonical. If opinions differed, the
law of Valentinian laid it down that a majority should prevail, or if
the texts were equally divided, the authority of Papinian.[106] The
interpolation method, used on a large scale by Tribonian for the Digest
of Justinian, is a product of this same outlook. A canonical text is
in its very idea true and incapable of improvement. But the actual
needs of the spirit alter, and so there grew up a technique of secret
modifications which outwardly kept up the fiction of inalterability and
which is employed very freely indeed in all religious writings of the
Arabian world, the Bible included.
After Mark Antony, Justinian is the most fateful personality of the
Arabian world. Like his “contemporary” Charles V he ruined everything
for which he was invoked. Just as in the West the Faustian dream of a
resurrection of the Holy Roman Empire runs through all the political
romanticism that darkened the sense of fact during and beyond the age
of Napoleon--and even that of the princely fools of 1848--so also
Justinian was possessed with a Quixotic urgency to recover the entire
Imperium. It was always upon distant Rome instead of upon his proper
world, the Eastern, that his eyes were fixed. Even before he ascended
the throne, he was already in negotiation with the Pope of Rome, who
was still subordinate to the great Patriarch of Christendom and not yet
generally recognized even as _primus inter pares_. It was at the Pope’s
instance that the dual-nature symbol was introduced at Chalcedon,[107]
a step which lost the Monophysite countries wholly and for ever. The
consequence of Actium was that Christianity in its first two decisive
and formative centuries was pulled over into the West, into Classical
territories, where the higher intellectual stratum held aloof. Then
the Early Christian spirit rose afresh with the Monophysites and
Nestorians. But Justinian thrust this revival back upon itself, and the
result was that in the realms of Eastern Christianity the reformist
movement, when in due course it appeared, was not a Puritanism but the
_new religion_ of Islam. And in the same way, at the very moment when
the Eastern customary law had become ripe for codification, he framed a
Latin codex which, for language reasons in the East and for political
reasons in the West, was condemned from the first to remain a literary
product.
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.