general statement, it seems probable that many of the jurists,
especially of such as grew up at Rome, received instruction in Greek
philosophy. It has been suggested that not a few professed the doctrines
of the Porch. Anyhow the conception of Nature as a force or body of
tendencies prompting and guiding the progress of law was familiar to
them, and appears to have influenced their ideas. Then by a searching
and sifting of legal terms and maxims, what may be called an exetastic
method, they sharpened the edge of their minds and gave clearness to
their notions. Both the philosophical and the rhetorical training given
to young men fostered the habit of analysis; and the disputations which
went on among the lawyers, stimulated by the controversies of the two
great schools, Sabinians and Proculians, doubtless trained men in
dialectic, wherein the framing and the dissecting of definitions play no
small part. The history of law does not seem to have been taught, and
regarding some parts of their earlier legal history the Romans of the
later Empire may have known less than we know to-day. The sketch taken
from Pomponius which we have in the beginning of Justinian’s _Digest_ is
uncritical, and in many points defective. But these jurists, from their
study of the development of equitable principles through the action of
the Praetor, had a training in historical method which must have been
eminently profitable. During the last two centuries of the Republic and
the first century of the Empire, the law of Rome was being constantly
amended and developed far less by the comparatively rough method of
legislation than by the delicate methods of interpretation, discussion,
and the issuing of praetorian Edicts, and developed in such wise that
the new had always arrived before the old departed, so that the process
of evolution was always before their eyes, and its lessons familiar to
them.
Finally, the administration of justice by the _Praetor peregrinus_, who
doubtless based himself mainly upon the commercial usages of the
merchants who from various quarters resorted to Rome, and still more the
issuing of provincial edicts by the magistrates who were sent to rule
the provinces according to systems which combined some Roman rules and
principles with other rules which belonged to the particular province,
supplied abundant materials for observing in what points the special and
peculiar law of Rome agreed with or differed from the laws of other
peoples and states[91]. The jurists were thus led, not by theory, but by
the practical needs of the case, to apply and to profit by the
Comparative method, no less than by the three other methods above
enumerated. And accordingly they did in fact obtain, without any
paraphernalia of a Philosophy or Science embodied in separate treatises
or ostentatiously taught as a separate subject, those very gifts and
aptitudes which a systematic and enlightened scheme of legal education
ought to confer. They did not set out with abstractions, like our German
and Scottish friends. They did not, like Bentham and Austin, crack a set
of logical nuts, in the effort to divide and define the matter and the
leading conceptions of law. But they applied to the handling of their
own concrete rules and problems a mastery of general principles and a
love for harmony and consistency which are essentially philosophical.
They were pervaded by the sense of historic growth and change, for had
they not before them the relations of the old and the new in many
institutions—the development of _Formula_ beside _Legis Actio_, of _Ius
Gentium_ beside _Ius Civile_, of _Bonorum possessio_ beside
_Haereditas_, of _Longi temporis praescriptio_ beside _Usucapio_? The
one thing in which it may be said that a systematic science of law might
have helped them was the arrangement and distribution of topics. For
this they certainly cared little and did little. But the taste for
systematic arrangement was never strong in the ancient world. Perhaps
the modern appreciation of it dates back to the scholastic philosophy of
the Middle Ages, which spent much thought on what the logicians called
Division. Perhaps it has been reinforced by the more recent progress of
Natural History, which furnishes in the classification of the animal and
vegetable kingdoms the grandest example of orderly schemes of
distribution based on scientific lines.
-----
Footnote 91:
There was practically only one set of laws or customs belonging to
highly civilized communities which the Romans could compare with their
own law, those, namely, which they found in the various Greek cities.
These laws and customs, though varying a good deal in detail, from
city to city, seem to have borne a family likeness to one another. The
laws of the Italic cities were probably on the whole similar to those
of Rome herself. But the customs of the Carthaginians, of the Syrians,
and of the Egyptians, had many peculiar features.
-----
This excellence of the Romans in the sphere of concrete law confirms the
view we were led to take that the contents of a Philosophy or Science of
Law in general are not large, being indeed confined to the defining of
the relation of Law to Ethics and other cognate branches of philosophy,
and to the examination of some fundamental legal conceptions, important
no doubt, but not very numerous. The solid and essential value of legal
science begins in the manipulation of the material presented by an
actual system of law, in the moulding of the old customs so as to
reconcile them with the always changing needs of the people. And this
has been the doctrine and practice of the greatest foreign masters of
the Roman law in modern times. It was the doctrine of Savigny, who
opposed his historical method to the abstractions of the contemporary
Hegelians, and it prevailed in the struggle. I remember the way in which
it was conveyed to me by one of the greatest of Savigny’s school, Dr.
Karl Adolf von Vangerow, to whose brilliant and stimulating lectures I
listened at Heidelberg, now many years ago. Inspired by my Scottish and
Oxford training with the notion that in order to study a subject rightly
one must begin with its metaphysics, I asked the professor, on one of
the days when his students were permitted to call on him, what book on
the Philosophy of Law (_Rechtsphilosophie_) I ought to read. He raised
his eyebrows till they seemed to reach the top of his head, and said
with a deprecating wave of his hand, ‘I doubt whether that kind of
reading will help you with your legal studies. I see little use in it.
But if you really do want to study such a topic——well, there is the
_Naturrecht_ of my colleague Herr Dr. Röder: you can look at it.’ Nearly
all the jurists to whom the development of modern Roman law in the
nineteenth century in Germany has been due have taken a similar view,
and have spent their powers either on the same questions as those which
occupied the Roman sages or on the application of Roman principles and
doctrines to the phenomena and conditions of modern times, and
especially of modern commerce. They have been philosophical in their use
of the analytic and historical methods, philosophical, that is to say,
as compared with Lord Coke or Lord St. Leonards, and they have greatly
improved on the division and classification of topics which we find in
the Roman books. But they have troubled themselves about the abstract
philosophy of law just as little as those two famous judges, or as those
august Romans who divided their time between the composition of legal
treatises and advising the Emperor on the ordinances which he issued for
the whole civilized world.
Not a few of the great Roman jurists (including Julian, Papinian, and
Ulpian) sat in the imperial consistory, and were practically not only
judges of the highest Court of Appeal but also legislators. An estimate
of their scientific merits must include this branch of their activity,
whether as settling the form of decrees to be passed by the Senate, or
as drafting enactments to be issued in the name of the Emperor. For
legal science is not merely either expository on the one hand, or on the
other dispensatory and corrective, securing to each what is his, but is
also Constructive and Ameliorative, framing rules under which society
may advance steadily and smoothly, may get rid of obsolete doctrines,
may find new facts adequately dealt with under new rules. It was a great
advantage for the Empire, and one which furnished some compensation for
the absence of representative legislatures that the business of
law-making lay in the hands of competent legal experts. Legislation
presents itself to us as being above all things an expression of the
will of the people, who know where the shoe pinches them, and have the
general interest, not that of a monarch or a privileged class, in their
minds. Yet a wise despot, with pure purposes and a command of the best
legal advice, may be expected to legislate in the general interest, and
most of the legislation of the emperors during the first three
centuries, though it was often misguided in the sphere of financial
administration, was conceived in the interest of the population at
large. What was specially due to the lawyers who advised the Emperor was
the policy followed in amending the general private law, and in bringing
it into a more orderly and consistent condition. In this respect they
vindicated their claim to be truly scientific. The work of law reform
went on upon broad principles, unhasting and unresting, till the
anomalies and injustice of the old system had been almost entirely
removed. Yet there was left for a long time in the provinces a local
variety of law which corresponded to and respected the local needs and
sentiments of the populations. No passion for a rigid uniformity seems
to have blinded the advisers of the Emperor to the truth that the first
business of law is to subserve the well-being of the people and to win
their confidence as well as command their obedience. In this respect
also they were not merely ‘priests of justice,’ as they liked to call
themselves, but also worthy servants of science. The Roman Empire
maintained itself in the East for more than eleven centuries after the
last of the classical jurists. In the West its influence survived its
political existence, and its law in particular became the foundation of
that which came to prevail over Continental Europe. As it was largely
owing to the strength derived from its legal and administrative
structure that the Eastern Empire lived so long, so the permanence of
the Roman law in the West is some proof of the attachment of the people
to it, and so of its intrinsic merits. Both facts are alike a tribute to
the scientific character of the system and to the scientific genius of
the men who moulded it. For no system could have passed through the
changes which the East underwent, or survived the storms which broke
upon the West, save one which by the dominance of clear and broad
principles and the symmetrical development of rules from those
principles had become at once intelligible, flexible, and consistent.
Let us see what are the conclusions to which we have, by this somewhat
devious course, been led.
1. There are four chief methods of studying law—the Metaphysical, the
Analytical, the Historical, and the Comparative.
2. Each of these has its proper sphere and its distinctive value, even
if the two latter are of most general practical service.
3. All four ought to find a place in a complete scheme of legal
training.
4. The two former are applicable only to the rudiments and to some
particular parts of the subject, the two latter are profitable all
through it, and specially so when they can be combined.
5. The Roman jurists pass so lightly over the theoretical side of law
that the first method supplies them with little more than a few general
phrases. Although their definitions are the result of analysis, they do
not formally or of set purpose employ the second. They use the
Historical method freely, though almost unconsciously. At one stage in
the growth of their law they applied to some extent the Comparative
method, being led to it by the facts they had to deal with. But they
seldom mention any law but their own.
6. The Romans, though saying little about the broad aspects or so-called
Philosophy of Law, do in fact pursue it in a philosophic spirit; and to
this spirit the excellence of their system is largely due.
7. Their example shows us that it is not the effort to discuss law in a
metaphysical or abstract way that makes a body of law truly
philosophical, but rather the power of so framing general rules as to
make them the expression of legal principles, and of working out these
rules into their details so as to keep the details in harmony with the
principles.
In other words, it is Reasonableness, Simplicity, Self-consistency that
make the excellence of a legal system, and the best methods of study are
those which attune the lawyer’s mind to seek after these qualities, and
which enable him to hold a middle course between viewiness and the
pursuit of an impossible perfection on the one hand and bondage to the
letter on the other.
XIII
THE RELATIONS OF LAW AND
RELIGION
THE MOSQUE EL AZHAR
To the modern European world Religion and Law seem rather opposed than
akin, the points of contrast more numerous and significant than the
points of resemblance. They are deemed to be opposed as that which is
free and spontaneous is opposed to that which is rigid and compulsive,
as that which belongs to the inner world of personal conscience and
feeling is opposed to that which belongs to the outer world of social
organization and binding rights. The one springs from and leads to God,
who is the beginning and the end of all religious life; the other is
enforced by and itself builds up and knits together the State. Even
where the law in question is the revealed Law of God the contrast
remains. The efforts which we find in the New Testament, and especially
in some of St. Paul’s Epistles, to reconcile the law delivered to Israel
with the dispensation of the New Covenant, all point to and assume an
antagonism. Grace, that is to say, the spontaneous goodness and favour
of God, is felt as the antithesis to the Law; and it is only when human
nature has been brought into complete accord with God’s will that the
antithesis vanishes, and we have the Perfect Law of Liberty.
This law of liberty, moreover, is not positive law at all, but
supersedes that law; for when all men have been so made perfect, the
need for human law has ceased, because their several wills, being in
accord with the will of God, must needs be also in accord with one
another.
This antagonism of Law and Religion has been conspicuous in the
relations to each other of the lines of thought followed by the
ministers of religion on the one hand and the students or practitioners
of law on the other. In the theology of the Reformers of the sixteenth
and two following centuries Legalism is a term of reproach and is
contrasted with the freedom of the Gospel. Readers of the _Pilgrim’s
Progress_ will remember the part played in it by old Mr. Legality. The
clergy have been apt to dislike lawyers, to accuse them of cramping the
freedom of the Church, and of desiring to bind it in State fetters.
Erastianism, of which some lawyers and statesmen have been known to be
proud, is a name of dark reproach on ecclesiastical lips, while the
legal profession on its part, though it has always had to yield
precedence to the other gown, conceives that the Church needs to be
strictly controlled, gladly seizes occasion for limiting the action of
her ministers, often suspects them of trying to evade or pervert the
law, and is prone to bring accusations, more or less railing, against
them, as seeking to compass their (possibly excellent) ends by irregular
or even illegal methods.
But in earlier times, and in many countries, the two lines of thought,
the two branches of learning, the two professions, whether as teaching
or as practising professions, were either united or deemed to have a
close affinity. In the lowest forms of organized society, such as we
find among the aborigines of Canada and South Africa, the first kind of
profession that appears is usually that of the wizard or practitioner of
magic, and the rudiments of a priest are developed out of the medicine
man, who represents the most rudimentary form of the physician. But in
this stage of progress there is no religion properly so called, and the
usages that prevail and which are the material out of which law will
grow, are too few, too rude, and too often interrupted by violence, to
form a system of settled and harmonized rules. When, however, Religion
and Theology begin to emerge from the superstitions of the savage state,
and when custom, already settled, and growing more complex with the
progress of culture, has enabled civil society to organize itself in
institutions, Law and Theology are usually found in close affinity. Law
everywhere begins with Custom. Now many of the Customs which form Law
are concerned with worship, because the relations they regulate are
relations depending on religion. The Family is a religious as well as a
natural organism, for it is often sacred, and in many peoples is held
together by the common worship which its members owe to the spirits of
their ancestors. Hence the maxims that regulate marriage, and the
relation of parents to children, and the devolution of property, have a
religious basis, and are precepts of religion no less than rules of law.
To take vengeance for the killing of a near relative is a duty which the
pious son or brother owes to the ghost of the slain; while on the other
side the slaughter has created a legal right the enforcement of which,
by compelling the payment of a proper compensation to be exacted from
the slayer or his kinsfolk, will also satisfy the religious obligation.
Other relations of men to one another not primarily religious become so
by being placed under supernatural protection. Where a promise or
agreement is to be rendered specially binding, the party engaging
himself takes an oath invoking the Divine Power, and perhaps takes it at
a shrine, or (as in Iceland) on a temple-ring, or (as in the Middle
Ages) on the relics of a saint. These contracts are not confined to
private affairs. Treaties are made in the same solemn way. Compacts such
as that for the single combat of Paris and Menelaus in the _Iliad_ [92],
are placed under the sanction of the gods by a formal appeal to them as
witnesses. And when a person who had violated such an oath dies
suddenly, his death is ascribed to the anger of the Powers to whose
keeping his promise had been committed[93]. In such cases the priest of
the deity invoked is apt to become the interpreter of the obligation
undertaken, or the arbiter as to how far it has been performed. Possibly
he is made the keeper of an object for which safe custody is desired, or
the depositary of an object whose ownership is disputed. Sometimes,
indeed, it is rather within the breasts of chiefs or kings (since they
act as judges and exercise executive power) than in those of priests
that the knowledge of customs and maxims is deemed to reside. But in
these cases the royal office has itself, if not a priestly, yet a sacred
character, and the priest plays no leading part in the political or
social system. The nature of the religion, and its more or less mystical
tendency, have of course a good deal to do with the place allotted to
the priesthood in early societies.
-----
Footnote 92:
Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to
the Rivers and to the Earth.
Footnote 93:
Thus we are told by an early Irish annalist that ‘the sun and the wind
killed Laoghaire (king of Ireland in the time of St. Patrick) because
he broke his oath to the men of Munster.’
-----
Where legal rules take the form of written records embodying what is
held to have been delivered to a people either directly by the deity or
through sages recognized as inspired or guided by some divine power, the
sanctity of law reaches its maximum. It is then a part of religion, and
those who know it and expound it have a religious no less than a legal
function.
In such documentary records Law and Religion are often so closely
interwoven as to be scarcely separable. Many rules are secular in one
aspect, religious in another, so that it may be doubted which kind of
motive prompted them, which kind of object they were designed to secure.
A regulation of ceremonial purity may have its, perhaps forgotten,
origin in considerations of a sanitary nature. A sacrifice prescribed as
an atonement for sin may also operate as a civil penalty. Offences
against the community may be deemed primarily offences against the deity
and so dealt with; and a frequent punishment for what we should now call
crimes is to devote the culprit to the wrath of the powers of the nether
world, or to deprive him of the protection of those who rule the upper
world, and therewith expose him to outlawry, the oldest of all legal
sanctions.
In nations living under the influence of such ideas, the exponents of
Law and Religion tend to be the same persons, because these two branches
of public administration are conceived as being the same, or at least
two different sides of the same thing. Such persons may or may not be
priests performing sacrifices or consulting the deity through oracles,
or omens, or a sacred lot. But they are the depositaries of the sacred
traditions, and it is they who interpret those traditions and apply them
to concrete cases. As such they are usually among the ablest and most
educated persons in the community, sometimes prominent members of the
ruling class.
Yet Religion must not in such a state of society be conceived as the
dominant power, which gives birth to Law. In early societies the duties
and acts which belong to the external or secular side of life are more
important than is the part of life concerned with the emotions felt
towards the deity, whether of reverence, love, or fear. But in the
observance of all the established customs and in the performance of all
the prescribed ceremonies, that which is pleasing to the gods is not
separated even in thought from that which is salutary for the community.
The service of the deity consists, apart from occasions of orgiastic
excitement, not in the emotional attitude of the soul, but in the
discharge of the duties recognized as owed to the family and the
community, duties which are more or less moral according to the
character of the religion—for righteousness may hold a higher or a lower
place among them—but which, whether they relate on the one hand to
sacrifices offered and fasts observed, or on the other hand to the
fulfilment of all that the tribe or the State expects from its citizens,
are external duties. In most early nations, these duties are prescribed
not by religious emotion, but by settled usages and rules which have the
sanction alike of the State whose welfare is involved in their
observance, and of the unseen Powers that protect it. The people have
not yet begun to distinguish by analysis the three elements of Law,
Morality and Devotion, though here and there the voices of lofty
spirits, such as the prophets of Israel, are heard proclaiming the
supremacy of the law of righteousness as the true expression of the Will
of God, and obedience to it as the truest service that can be rendered
by His creatures.
The relation borne by Law, Morality, and Worship, each to the other,
differs widely in different peoples. The student of early society must
be always on his guard, like the student of natural history, against
expecting a greater uniformity than in fact exists, and against
generalizing broadly from a few striking instances. Even so brilliant a
speculator as Sir Henry Maine fell into the error of assuming the system
of paternal power to be practically universal in certain stages of
society. Among our Scandinavian and Low German ancestors, for example,
it would appear (so far as our imperfect data go) that the worship of
the gods had not very much to do with legal usages and civil polity,
though to be sure other influences came in at a comparatively early
stage to turn the current of their development[94]. The same may be true
of the Gadhelic tribes, though the knowledge we have regarding their
usages and worship while still heathen is lamentably scanty. There is,
however, in the records of early Rome and of the Greeks, as well as in
those of some Eastern nations, a good deal to illustrate the view I have
been trying to state.
-----
Footnote 94:
But in Norway the Assembly is usually held at a temple, as in Iceland
the Goði is both a priest and a chief, and the temple is the place
where judicial oaths are taken. See Essay V, vol. i. p. 318.
-----