Origin and Landscape (C): The Relations between the Cultures

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 58“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.

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 city⁠⁶⁴ simply did not count in the eyes of the law, whereas even the Sachsenspiegel⁠⁶⁵ 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.

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 judges⁠⁶⁸ 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.

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 Decemvirs⁠⁷⁷ 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 tendency⁠⁷⁸—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

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 Christians⁠⁹⁰ 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 probably⁠⁹⁴ 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-Galuta⁠¹⁰¹) 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.

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 Leo⁠¹⁰⁹ and the Corpus of the great Persian jurist Archbishop Jesubocht.⁠¹¹⁰ In that time, too, came the greatest figure of Islamic jurisprudence, Abu Hanifah.

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 Jewish⁠¹¹¹ 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 despised⁠¹¹⁷ Lombarda, but in the manipulation of abstract notions. Their interest in the book was purely dialectical⁠¹¹⁸—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.

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 thing⁠¹²⁶—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.