Page:Decline of the West (Volume 2).djvu/96

80 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," 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, 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, "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."