§ 8. involve, in their logical consequences, a series of other legal rules not directly contained in the sources from which we obtained our rule. The law is thus enriched, and enriched by a purely scientific method. When a given rule of law is so used as to lead us, by an inductive process, to the discovery of a major premiss, the ascertainment of new rules by means of the major premiss thus discovered is termed the analogical application' of the given rule of law. The application, then, of a principle (a major premiss) which is given, we call Inference; the application of a principle which we have found, we call Analogy. The scientific process by means of which principles are discovered which are not immediately contained in the sources of law may be compared to the analytical methods of chemistry. It is in this sense that Ihering has spoken of a 'juristic chemistry.' Jurisprudence analyses a legal relation which is regulated by a rule of law into its. elements. It discovers that amidst the whole mass of legal relations which are for ever emerging into new existence from day to day— endless and apparently countless-there are, nevertheless, certain elements, comparatively few in number, which are perpetually recurring merely in different combinations. These elements constitute, in the language of Ihering, the alphabet of law. The common element, for instance, in every agreement, whether it be an agreement to purchase, to hire, to institute a certain person heir, to deliver, &c., is just the agreement, in other words, the expression of conAn exhaustive enumeration of the legal rules concerning sales must necessarily include certain rules bearing on this element in every contract of sale, viz. the expression of the concordant will of the parties. Thus from the legal rules concerning sales we gather certain major premisses, or general rules, concerning this element of 'agreement,' which rules will accordingly determine the requirements that are necessary to constitute an agreement, the effect of error, of conditions, or other collateral terms, and so forth. They are major premisses involving a countless variety of other legal rules, sensus. 1 v. Ihering, Geist des Römischen Rechts auf den verschiedenen Stufen seiner Entwickelung, Part 3, subdiv. I (2nd ed. 1871), p. 11. 2 Geist des Röm. R., Part 1 (3rd ed. 1873), p. 42. which will assist us in fixing the conditions under which other § 8. agreements, say, to hire, to deliver, to institute some one heir, and many others, are effectually completed, subject, of course, to such modifications as may be necessitated by a different set of major premisses. Thus, in applying the method of analogy to a rule of law, we are, at the same time, discovering the ingredients of the legal relations. The method of analogy does not mean (as the lay mind is apt to imagine) the application of a given rule of law to a legal relation of a somewhat similar kind. Such an analogy would be the very opposite of scientific jurisprudence. It is the application of a given rule not to a merely similar relation, but to the identical relation, in so far as the identical element (to which the given rule had already assigned its proper place) is traceable in a legal relation which is apparently different. These, then, are the methods by which jurisprudence fills up the blanks which it finds in the law, and moulds the whole into completeness. The discovery of the elements which recur in every legal relation brings with it the discovery of rules of law which meet the just requirements of every legal relation. The mode of proceeding may be either by Analogy, i. e. by the discovery of those elements and the analysis of legal relations; or by Inference, i. e. by the practical application of those elements and the synthesis of legal relations. It is not by the legislator, but by scientific jurisprudence, that the complexity of human relations is regulated. II. The Ideal Function of Jurisprudence. Jurisprudence fulfils its practical function by effecting a material addition to our rules of law. It fulfils its ideal function by means of the form in which it presents these rules of law. For, as in the abundance of matter we are fain to look for the unifying conception which underlies the whole, so in the abundance of legal rules we instinctively search for the one idea which dominates all. It is the ideal task of jurisprudence to satisfy this desire for unity which exists in the mind of man. With this purpose in view, jurisprudence, in expounding the law, will avoid the use of the imperative form, in other words, it will avoid a simple enumeration of legal rules. It prefers to deal, on the one hand, with the facts, or groups of facts, § 8. which produce juristic effects; and, on the other hand, with the juristic effects annexed to these facts, or groups of facts, with a view to arranging both facts and effects under definite categories or conceptions, which it defines. A scientific exposition, for example, would never run as follows: If a thing has been delivered to you under a contract of sale, you have a right to keep it, and a third party into whose possession it comes, is bound to hand it over to you. The scientific exposition would be in this fashion. Firstly, ownership is a right, unlimited in its contents, to exercise control over a thing. Thus we get the conception of ownership.' Secondly, ownership can be acquired by traditio, occupatio, usucapio, &c. (each of these terms being defined). Thus in place of a series of legal rules we have a number of abstract conceptions, partly of rights, partly of facts. When this is done, the abstract conceptions appear to govern those very rules of law on which, as a matter of fact, they depend, and from which they have been gained. Jurisprudence deduces from the conceptions of ownership, delivery, &c., the several positive rules of law, the identical rules, namely, which it had previously, as it were, put into those conceptions. In point of form, then, the positive character of law is merged in the predominance of abstractions, and jurisprudence proceeds as though it evolved those laws spontaneously from general principles. And it is precisely by this means that the craving of the human mind for unity, and its repugnance to the predominance of matter, is satisfied. Each conception, once gained, urges us to rise to still higher ones, and thus the ideal instinct of the science of law begets a desire for a system of law, i. e. for a form of representation in which the whole body of law shall come before us as the spontaneous evolution of one single conception, the conception, namely, of Law: this done, matter will sink into the background and make way for the victorious Idea. PART I. THE DEVELOPMENT OF ROMAN LAW IN ITS PRINCIPAL STAGES. 9. Introduction. ROMAN law, in the course of its development, underwent a pro- § 9. cess of transformation from the local law of the city of Rome to the universal law of the Roman Empire. The history of Roman law accordingly divides itself into two great periods: (1) the Period of Local Law, which extends down to the last century of the Republic; (2) the Period of Universal Law, which is the period of the Empire. The first period is marked by the prevalence of the so-called ‘jus civile,' which is the rigid, formal, national (i. e. Latin) law of Rome. The second period is marked by the prevalence of the so-called 'jus gentium,' i. e. the equitable law, free from formalism, which sprang from the mutual interaction of Greek and Roman influences. § 10. CHAPTER I. ROMAN LAW AS THE LAW OF THE CITY OF ROME. § 10. The Twelve Tables. JUS CIVILE is the name given to the local law of the city of Rome. It was set forth, for the first time, on a larger scale, in the legislation of the Twelve Tables, B.C. 451, 450 (A.U.C. 303, 304). The Twelve Tables mark, at the same time, the starting-point in the development of Roman law, so far as it can be historically authenticated, a development which, after steadily advancing in uninterrupted progression, finally culminated in the Corpus juris civilis of Justinian. The characteristics of early Roman law, as we find it, or suppose it to have existed, in the Twelve Tables, are formalism and rigidity. All private dealings between man and man are, at this time, governed by two juristic acts: (1) 'mancipatio'; (2) 'nexum.' I. Mancipatio. Mancipatio is the solemn sale of early Roman law'. In the presence of five witnesses (cives Romani puberes) a skilled weighmaster (libripens) weighs out to the vendor a certain amount of uncoined copper (aes, raudus, raudusculum) which is the purchasemoney, and the purchaser, with solemn words, takes possession of the thing purchased as being his property. GAJUS, Inst. I. § 119: Est autem mancipatio imaginaria quaedam venditio: quod et ipsum jus proprium civium Romanorum est. Eaque res ita agitur: adhibitis non minus 1 Bechmann, Der Kauf nach gemeinem Recht, vol. 1 (1876), and, in refer ence to it, Degenkolb in vol. 20 (p. 481 ff.) of the Krit. Vierteljahrsschrift. |