§ 28. the enthusiastic admiration of all students. A number of jurists of quite exceptional ability succeeded in giving a complete and vivid picture of Roman law as it originally existed. A perfect cataclysm overtook the Usus modernus: nothing survived of it except what was based on the bedrock of ancient classical authority. The culminating point in this development is marked by Savigny's 'System of Modern Roman Law,' followed by Puchta's classic treatise on the Pandects. A reaction subsequently set in, first in favour of the Usus modernus-see, for example, Bruns' 'Recht des Besitzes' (1848)—and in more recent times in favour of modern legal requirements and legal ideas (Jhering, Windscheid, Bekker, Dernburg). But what Savigny and his historical school had destroyed could not be restored, or at any rate could only be imperfectly restored. The Usus modernus, in other words, the law of the Pandects as altered in accordance with the legal habits and ideas first of Italy and then of Germany, was finally superseded. Its place was taken by a Pandect law which, apart from a few modifications, was pure Roman law. In the field of legal theory the successes achieved by the German writers on the Pandects were indeed brilliant beyond all expectation, but the return to the original sources of Roman law rendered it impossible for the law of the Pandects to retain its vitality in practical life. As an effective instrument of legal education, this new 'law of the Pandects' was and will always remain unsurpassed, but it was not to be expected that a law so intimately associated with the past life of ancient Rome should continue for any length of time to dominate the life of modern Germany as an actual positive law. The law of the Pandects had played a great part in its time. Its rôle was now exhausted, and it had to make way for the law of the German Civil Code. Such is the position of affairs at the present time. The Corpus juris civilis has now ceased to have any force as an actual code of law, but it will continue to hold its own as a subject of scientific study. As a piece of legislation the system of Roman private law was destined to pass away; as a work of art it will endure for all time. PART II THE SYSTEM OF ROMAN PRIVATE LAW § 29. The System of Private Law. PRIVATE law is concerned with rights which are intended, by § 289. their very nature, to serve the self-interest of the individual; in other words, it is concerned with rights which assign to the person entitled a sphere of unfettered action, an arbitrary power to do as he chooses (supra, pp. 25, 26). Private law, in this sense, has its ultimate origin in the law of the family, in the rules, namely, which obtained in early times within the separate 'familiae' or households. In modern systems the law of the family, so far as it regulates e personal relations of power between the members of a family (viz. the marital, parental, and tutorial power), lies on the very borderland of private law. For nowadays the rights of control which spring from the law of the family have ceased to have exclusive reference to the interests of the person entitled to them, though they still retain a certain element of arbitrariness. In modern systems the central position in private law is occupied by the rules concerning the dominion of persons over things, or the equivalents of things,—in a word, by the Law of Property. Thus private law may be defined, with reference to what we now conceive to be its primary object, as the sum of binding rules which distribute among the individual members of a community, in their own interests, a certain power over the outside world and thereby regulate the economic conditions of such community. The pith of private law lies in the law of property. In other words, private law consists § 29. first and foremost of the rules regulating ownership and other rights of property. Coupled with these rules and intimately connected with them, we have the rules regulating family relations. It is the business of a systematic exposition of private law to unfold and exhibit the essential character of private law as we have just described it. The exposition of private law opens with the Law of Persons, that is, with the legal rules by which the range of the possible subjects of private rights is determined. Accordingly the law of persons has to deal with the question as to who is capable of having private rights. As a department of private law, it is identical with the law of the subject of private rights, in other words, it is concerned with proprietary capacity, the capacity of holding property. On the other hand, 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 to make over to the creditor, by means of the act of the debtor, at 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). Within the sphere of private law, 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 * Translator's Note. The term 'real rights' will be used throughout in the sense as here defined, i. e. in the distinctive sense of the German term 'Sachen rechte.' As to the term 'obligatory rights,' see infra, Translator's note to $60. devolution on his death. Not only does the family affect the § 29. property of the individual during his life, but to the family is due the fact that, even after his death, his property continues to exist as a living whole (infra, § 108). The rules on these subjects are comprised in the Law of the Family and the Law of Inheritance respectively. Family Law is concerned with the effects which the position of an individual in his family produces on his property. The Law of Inheritance is concerned with the effect of death on the property of the deceased. With the rules relating to the legal effects of family relations upon property ('Applied Family Law') are connected the rules on the family relations themselves ('Pure Family Law'): it is here we find the point of contact between the rules of private law regulating the family and the rules of private law regulating property. The system of Private law thus consists of three great departments: 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,-this department being closely bound up with the existence and organization of the family. 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. 1. General part. 2. The Law of Things. 3. The Law of Obligations. III. The Law of Family and Inheritance, or the law of the aggregate of property. |