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.[1]
It would give an incorrect idea to oppose Greek and Roman law to one another as quantities of the same order. Roman law in its whole development is an individual city law, one amongst hundreds of such, and Greek law as a unity never existed at all. Although Greek-speaking cities very often had similar laws, this did not alter the fact that the law of each was its own and no other's. Never did the idea of a general Doric, still less a general Hellenic, legislation arise. Such notions were wholly alien to Classical thought. The jus civile applied only to Quirites — foreigners, slaves and the whole world outside the city[2] simply did not count in the eyes of the law, whereas even the Sachsenspiegel[3] 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.[4] (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
- ↑ L. Wenger, Das Recht der Griechen und Römer (1914), p. 170; R. v. Mayr, Römische Rechtsgeschichte, II, 1, p. 87.
- ↑ A curious sidelight on this appears in the provisions of the savage law against recalcitrant debtors, who (after certain delays and formalities) could be put to death and even hewn in pieces by their creditors, or — "sold as slaves beyond the Tiber." — Tr.
- ↑ A thirteenth-century collection by Eike von Repgow of German customs and customary law (ed. K. G. Homeyer, 1861). — Tr.
- ↑ And were judged by a different authority, the peregrin prætor. — Tr.
