on the other hand, the Breviarium Alarici maintained its vitality in § 18. Western Europe, in spite of the fact that, as regards Spain itself, it was set aside in the seventh century by the union of Romans and Goths under one single code (the remodelled Lex Visigothorum). The Roman Breviarium Alarici became the Lex Romana of Western Europe, and, down to the eleventh century, it exercised in this capacity (though frequently only through the medium of inferior abstracts) a dominant influence upon Romanic law in Southern France and some parts of South Germany (e. g. Upper Rhaetia). Even in the German convent-schools (e. g. St. Gall, Reichenau) the Breviarium was used in the early middle ages (10th and 11th centuries), in addition to the records of German law, as the basis of legal instruction". With regard to Italy, however, the conquest of that country by Justinian, though only temporary, had nevertheless resulted in its adopting the Corpus juris of the Eastern empire. Thus, from the sixth century onwards, the Corpus juris of Alaric, king of the Visigoths, and the Corpus juris of Justinian confronted each other as rivals, the former predominating in the West, the latter in the East. Which was to be the Corpus juris civilis of the future?

The question was decided in favour of Justinian's code. The school of glossators who revived the study of Roman law in Italy in the twelfth century, took Justinian's Corpus juris (which was in force in Italy) as their starting point, and with the triumphant spread of Italian jurisprudence, the East-Roman Corpus juris found its way to the West. The Corpus juris of the German king was destroyed by the Corpus juris of the emperor of Byzantium.

It would, however, be erroneous to suppose that the decision in favour of Justinian's Corpus juris was due to a mere accident of history. It was rather the intrinsic value of what Justinian had achieved that found outward expression in the success which attended it. And the intrinsic value of Justinian's compilation consisted in this that it had succeeded in mastering the juristic literature, and in grasping, and handing down, to future ages, through the excerpts embodied in the Digest, the true spirit of

7 Fitting, ZS. d. Sav. St., vol. vii. pp. 86-90; Fitting, Die Anfänge der Rechtsschule zu Bologna (1888), p. 31.

§ 18. Roman jurisprudence. Important as the practical influence of imperial legislation had been in moulding the law, nevertheless it is not there we must look for the seat of that strength which guaranteed Roman law its indestructibility. What was so entirely unique in the achievements of Roman law was, simply and solely, its masterly treatment of the casuistry of private law, a treatment which, while discovering the laws of a particular case, revealed, at the same time, both the elements of the cases, and the principles inherent in these elements, which govern all private transactions in general, and more particularly those which result in obligations,-a treatment which had solved the great problem how to reconcile a free, equitable discretion with fixed rules, the vindication of the concrete individual intention with the necessary subjection to its immutable, innate laws. It was in the writings of the Roman jurists alone that this masterpiece of Roman law had been accomplished. Whoever, therefore, had mastered the Roman jurists had mastered what was true, genuine, and imperishable in Roman law. But it was not everybody that could master and understand the jurists, as we see most conspicuously in comparing Justinian's code with the others. Even the compilers of King Alaric's code had found the great works of Papinian, Ulpian, Paulus, &c. difficult and unintelligible. They were content with the light fare with which the short 'maxims' (sententiae) of Paulus and the Institutes of Gajus, in their abridged form, supplied them. They had thus renounced what constituted the real strength of Roman jurisprudence. In the main, therefore, the Lex Romana Visigothorum is nothing more than a collection of ukases, of imperial constitutions. Roman law, in this shape, was as unfit to be 'received' in Germany as it was in the shape of the other Leges Romanae. But it was different with the advisers and professors of Justinian; they were still qualified to read and extract the great jurists with intelligent appreciation. It was

in their Corpus juris alone that Roman law stood forth in all its splendour and world-subduing power. The Corpus juris of Justinian, and it alone, has preserved, and rescued for all future ages, the great masterpiece of Roman jurisprudence. In this form, and in no other, could Roman law be received in

Germany. And so it actually happened. Thus we are still living § 18. in this as in other respects on what the intellectual forces of Byzantium accomplished for us by preserving and transmitting the treasures of antiquity.

This, then, was the great feat which Justinian had achieved by his Corpus juris. Roman law, as a work of art, had been definitely finished, and had, at the same time, been cast into a comprehensive form which saved it from destruction. No matter now whether the Roman state perished or not, Roman law was strong enough to survive the Roman empire.

H

§ 19.

PART II.

THEORETICAL PART.

19. The System of Private Law.

PRIVATE Law is the sum of moral rules which, while distributing among individuals a certain power over the outside world, regulate the economic conditions of human society. It is concerned with the dominion of persons over things or that which has the value of things (§ 7). Private Law is thus identical with the Law of Property.

Hence it is that in Private Law the person always appears as the subject, never as the object of a legal right. The Law of Persons, as a department of Private Law, is identical with the law of the subject of private (i. e. proprietary) rights; in other words, it is concerned with the capacity of holding property ('proprietary capacity').

And conversely, in private law the thing is always the object of a legal right. But it may be subjected to the will of the person invested with the right in one of two ways: either directly, the right existing over the thing itself (real rights)*; or indirectly, i. e. through the medium of the act of another, the debtor (obligatory rights). The purpose of real rights (such as ownership) is to enlarge, at once and definitively, the scope within which the person entitled may exercise his power. Real rights are thus the final end of proprietary dealings. On the other hand, the purpose of obligatory rights is

* Translator's Note. The term 'real rights' will be used throughout in the sense as here defined, i. e. in the distinc

tive sense of the German term 'Sachenrechte.'

to make over to the creditor, by means of the act of the debtor, at § 19. some future time, a thing or that which has the value of a thing. Obligatory rights are thus the means of proprietary dealings. In accordance with this difference in the nature of proprietary rights the Law of Property is divided into the Law of Things (which is concerned with real rights) and the Law of Obligations (which is concerned with obligatory rights).

In ordinary dealings, however, proprietary rights do not always appear separately. A person's property is affected in its entirety both by the position he occupies in his family, and by its devolution on his death. The rules on these subjects are comprised in the Law of the Family and the Law of Inheritance respectively. Family Law deals with the effects which the position of an individual in his family exercises on his property. The Law of Inheritance deals with the effect of death on the property of the deceased. Inasmuch as the effects which family relations produce upon property are determined by the nature of these relations, it is usual, in explaining the legal effects which family relations exercise upon property ('Applied Family Law'), to couple therewith the legal rules on these family relations themselves ('Pure Family Law').

The system of Private law thus consists of three great depart

ments:

1. the Law of Persons, being the law of proprietary capacity;

2. the Law of Things and Obligations, being the law of property with reference to its constituent parts.

3. The Law of Family and Inheritance, being the law of property viewed in the aggregate.

The law of property in reference to its constituent parts, i. e. the law of things and obligations, which is usually called the law of property simply (in the narrower sense of the term), should be preceded by a general part, dealing with those principles which are equally applicable to all proprietary rights. Thus we have the following arrangement :

I. The Law of Persons (or the law of the subject of property). II. The Law of Property (or the law of the constituent parts of property).