Page:The Green Bag (1889–1914), Volume 12.pdf/637

 598

THE SPIRIT OF THE ROMAN LAW. BY GUSTAVE RAVENÉ.

THE historical study of law must be based on philosophical considerations. It must start from the premise that law is not an accidental or arbitrary institution among men, a necessary evil, a convenient arrange ment serving some social expediency; but that it has its inner reason in the very nature of man, that it forms a part of his moral na ture and constitutes an important factor in his social existence. The realization of the idea of justice belongs as much to the pro gressive evolution of humanity as does the development of the ideas of religion, morality, etc. Hence law, as a part of human social life, is closely connected with the entire in tellectual formation of the human species. The general height of the intellectual develop ment of mankind is the standard of measure ment for the relative position of their legal ideas. The proper formative sphere of law is the national life. Law is a social institution, as such part of the national life of the race or nation, and, therefore, it must be different among different peoples. The very concep tion of law being uniform and general for the whole of mankind, the question has often been asked, Whence arises the diversity of laws among different nations? The reason for this diversity has been sought in all kinds of external or accidental phenomena. But a deeper reason underlies this variation. The whole process of human development does not proceed in an abstract uniformity or by the collective activity of the species, but it observes an arrangement in accordance with the separation of mankind into races, nations or tribes. Accordingly, physical and intel lectual factors being different, there is nec essarily a variation in the essential phenomena of their social life as well as in the general directions of their intellectual and moral de

velopment. Peoples, which by descent, adaptation, character or language, are united in particular nationalities, form the smaller units in which the general existence and the intellectual, moral and social characteristics of the whole species are developed. The development of all human ideas in religion, morals, art, science, takes place in every par ticular people and thus is tinctured with its peculiar national character. It cannot be otherwise with law. In every people the so cial life in morals, customs and intercourse, develops itself in accordance with its individ ual nationality, and, accordingly, the concep tions of the legal order of life are, in every nation, developed in the national direction of its intellectual and moral existence; and, nec essarily, in different manners by different nations. Therefore every popular law must have a national character, and, indeed, it will give the best representation of the intellectual and social conditions prevailing in the nation. The idea of an abstract universal law or uni versal state is in contradiction to the anthro pological organization of the human species. But the unity of the legal idea does not there fore, disappear, as little as the unity of the human character is lost among the different races. The differentiation and inter-relation of races and peoples, which shows itself in language and nationality, repeats itself in legal institutions. There are wider and nar rower circles of related laws, but in all is the universal fundamental legal idea the starting point and generating power. With this national formation of laws is given the idea of their historical development. The separate popular laws, like the peoples themselves and their social and intellectual conditions of existence, are not absolute quan tities, but separate ephemeral phenomena, in the great stream of history, and wherever a