From System of the Modern Roman Law, translated by William Holloway, revised and corrected by Ruben Alvarado

CHAPTER I. OBJECT OF THIS WORK.

§ 1. MODERN ROMAN LAW.

The part of the science of law of which the exposition is undertaken in this work has been designated as the modern Roman law. This special undertaking will now, in the following contrasted propositions, be more precisely defined than it could be in a mere title.

1.  It is the Roman law which is to be exhibited in this work. To the actual undertaking belong merely those legal institutions which have a Roman origin, with the inclusion however of their later development, even though such should be referable to an other than Roman origin. Hence are excluded all institutions to which a Germanic origin must be ascribed.

2.  It is the existing Roman Law. Hence are excluded: first, the history as such of legal institutions; secondly, each particular determination belonging to the earlier law which is foreign to that of Justinian, because this newest form of the Roman law alone has entered into connection with our modern state of law; thirdly, each institution which belonging to the law of Justinian, has disappeared from our legal condition.

3. Private law and not public law belongs to our undertaking: consequently that part of law which the Romans denote by jus civile in one of the many acceptations of that term; in other words that which in the time of the ^,republic, they regarded as the exclusive science of a jurisconsultus or jurisprudentia proper.[1] This limitation is in part to be regarded as a consequence of the preceding, inasmuch as the private law of the Romans as a whole has become in any considerable quantity, a part of our present law. True, Roman criminal law has not remained foreign to our present law either, but it has entered into it only partially and incomparably less than the private law.

4. Lastly merely the actual system of law to the exclusion of procedure or the forms destined for the prosecution of an action: consequently merely that which by many is called material private law. For procedure has formed itself in so peculiar a manner by the blending of sources historically diverse that a special treatment of this branch has become necessary, instead of holding as the Roman jurists would have held, the intimate union of the theory of procedure with that of material law not only as possible but expedient. With respect to the limit of our work on this side, there is in point of principle no doubt, but in practice that limit is often misunderstood, principally because one and the same institution may in fact belong to two departments. For example the judicial decision, as to its form and its conditions belongs to procedure; on the other hand, as soon as it becomes legally valid, it has two operations: one, the action and exception arising from a res judicata, which belong to the system of law itself; the other, execution, which is a pure doctrine of procedure.

If these limitations are comprehended under common point of view, they precisely define the Roman law in the sense in which it has become common law for the greater part of Europe.

§ 2. COMMON LAW IN GERMANY.

To the conception of common law laid down in the first section, the conception of the common law prevailing in Germany is closely allied. That law is bound up with the peculiar constitution of the German Empire of which the single states were united under the general authority of the empire. Thus every part of Germany was subject to a double state power, under the influence of which a two-fold positive law was formed—territorial law and common law. Now many writers assert that upon the dissolution of the German Empire, the common law lost its validity along with its basis, the imperial state power. This opinion based upon a misunderstanding of the nature of positive law, has however remained entirely without influence upon the actual legal condition.[2]

Now the common law here mentioned is no other than the modern Roman Law in its special application to the German Empire and with the special modifications established by that empire. These modifications however are nearly all contained in the imperial legislation and are of trifling importance; for all the important deviations from pure Roman Law, as for example, the actionability of all contracts without the stipulation, the more extended importance of bona fides_, have never been peculiar to the German Empire but have everywhere been uniformly recognized to the exact extent to which the Roman law has been applied in modern Europe.

Hence an exposition of the modern Roman Law, to which this work is confined, would require merely trifling additions to be able to pass at the same time for an exposition of the common law of Germany.

§ 3. LIMITS OF THE TASK.

By the limits established for our subject, every province lying outside them is treated as foreign to it. In reference to this, the exposition has to avoid two opposite faults. The one consists in an arbitrary transgression of the limits from a predilection sometimes for a department lying near, sometimes for a special investigation actually pertaining to the subject; the other consists in a narrow observance of the limits even where a transgression of them is unavoidable if either the thoroughness of the particular enquiry or the clearness of the exposition is not to suffer.[3] This latter consideration makes also a certain toleration on the part of the reader desirable, for here the exact measure is reached more by tact than by fixed rules; a certain room for maneuver cannot therefore be refused to the subjective insight.

In particular, much will be admitted which belongs to the common fundamental doctrine of every system of positive law and consequently is clearly not peculiar to the Roman law. There argues in favor of this inclusion: not merely former practice especially in the courses of the Pandects of the German universities, not merely the peculiar shape which the Roman law has given to many a part of this doctrine, and the influence which in this direction it has exercised over other systems of legislation, but especially the consideration that the Roman law, from the exigencies of its situation, has assumed more than any other system of positive law a general character, which renders it especially fit for a satisfactory treatment of that fundamental doctrine.

CHAPTER II. GENERAL NATURE OF THE LAW SOURCES.

§ 4. JURAL RELATION[4]

We have to seek the foundation of the modern Roman law in the establishment of the law sources belonging to it. That this may be done with success, a more general discussion of the nature of law sources is altogether necessary.

If we regard the legal condition as it surrounds and penetrates us on all sides in practical life, it appears to us as the power justly appertaining to the individual person: a sphere in which his will rules and rules with our consent. This power we call a right of this person, synonymous with competence; some call it law in the subjective sense. Such a right appears especially in visible form when on being questioned or resisted, its existence and scope are recognized by a judicial decision. But a closer examination convinces us that this logical form of a decision is merely called forth by the accidental need and that it does not exhaust the essence of the matter; rather, it itself requires a deeper foundation. This we find in the jural relation, of which each individual right shows only a particular side, separated from it by abstraction, so that the very decision regarding the individual right can only be correct and convincing insofar as it proceeds from the complete perception of the jural relation. The jural relation has moreover an organic nature which reveals itself partly in the coherence of its constituent parts, balancing and limiting one another, partly in the gradual unfolding which we recognize in it, partly in the mode of its arising and passing away. This vital construction of the jural relation in each given case is the intellectual element of juristic practice and distinguishes its noble calling from the bare mechanism which so many ignorant persons see in that practice. In order for this important point not to be understood in merely general terms but be brought to view in the entire wealth of its content, it may not be superfluous to illustrate it by an example. The famous title Frater a fratre deals with the following case:—Two brothers are under the paternal power. One makes a loan to the other. The borrower repays this loan after the father’s death and it is asked whether he can recover this money paid as money paid by mistake. Here the judge has simply to decide upon the question, whether there is or is not ground for the condictio indebiti; but to know this, a complete view of the jural relation must be present to him, the individual elements of which were: the paternal power over the two brothers, a loan of one to the other, a peculium which the debtor had received from the father. This composite legal relation developed progressively by virtue of the death of the father, the inheritance thereof, the discharge of the loan. From these elements, the decision desired from the judge must proceed.

§ 5. INSTITUTION OF LAW.

The decision regarding an individual right is only possible by a reference of the particular matters of fact to a general rule by which the particular rights are governed. That rule we call simply law [das Recht] or law in general: some term it law in the objective sense. In its visible shape, it appears especially in statute [dem Gesetz], which is an expression of the supreme power of the state over the legal rule.

Just as the decision regarding a particular litigation has only a limited and dependent nature and first finds its living root and convincing force in the exhibition of the jural relation, so in like manner is it with the legal rule. For the legal rule as well as its expression in a statute have a deeper foundation in the vision [Anschauung] of the legal institution, and the organic nature of this shows itself both in the living connection of the constituent parts and in its gradual unfolding. If we do not stop at the immediate appearance but delve into the essence of the thing, we recognize the fact that each jural relation stands under a corresponding legal institution which is, as it were, its type, and by which it is governed, in the same manner as the single judicial decision by the legal rule.[5] Indeed this latter subsumption is dependent upon the former, by which it is first able to obtain truth and life. The case introduced in the former section shall here also be employed for illustration. The legal institutions thereto relating are: the inheritance by the children from the father; the ancient peculium and especially the deductio prevailing in it, transmission of claims to the heirs, confusion of claims and debts, the condictio indebiti. In the unfolding of the thought there exists this natural distinction, that we first perceive the institutes of law separately and afterwards combine them by an effort of the will, instead of the jural relation being given to us by the events of life and so immediately manifesting itself in its concrete combination and complexity.

On further examination, however, we perceive that all the institutions of law are bound up in a system and that they can only be completely conceived in the entire connection of this system, in which again the same organic nature appears. Immeasurable as may be the difference between a single, restricted jural relation and the system of positive law of a nation, the difference lies merely in the dimensions; in their essence they are not dissimilar and the mental operation which leads to a knowledge of one and the other is essentially the same.

From this we perceive how vain it is, as is often done in legal science, for theory and practice to be regarded as entirely separated, even as opposed. Their outward vocation differs, as does the application of the knowledge acquired: but they share the nature and direction of thought as well as the education which leads to them, and both one and the other of these occupations will only be worthily filled by him in whom dwells a consciousness of this identity.[6]

§ 6. CONCEPTION OF THE LAW SOURCES.

We call law sources the grounds of origin of the general law, hence both the institutions of law and the individual legal rules formed from them by abstraction. This conception has a double affinity, making it necessary to eliminate two mistakes.

1. Individual jural relations too have their grounds of origin,[7] and the affinity of jural relations to the institutions of law easily leads to a confusion of the grounds of origin of jural relations with those of legal rules. If for example one wishes to enumerate completely the conditions of any single jural relation, then there undoubtedly pertains both the existence of a legal rule as a matter of fact corresponding to this rule, as for example, a statute which recognizes contracts, and a concluded contract itself. Nevertheless, these conditions are specifically different and a confusion of concepts is the result if we place contract and statute on the same line as law sources.[8]

2. Another confusion based more upon the name, is that of the law sources with the historical sources of legal science. To these pertain all monuments from which we derive a knowledge of legal-scientific matters of fact. The two concepts are entirely independent of one another and it is merely accidentally when they meet at any single point; nevertheless, this meeting is especially frequent and important. Thus for example Justinian’s Digests belong to the sources in both meanings of the term; the lex Voconia belongs to the sources of the older law, but since it is lost, not to the sources of legal science; the opposite case presents itself in the passages of the ancient historians or poets which contain notices of law. It is however to be remarked that in most cases in which we have occasion to speak of law sources, both senses of the expression in fact coincide, so that the danger of an error in the conception is not great. Thus, for example, the parts of the Corpus Juris as statutes of Justinian are law sources for Justinian’s empire; by virtue of their reception, law sources for us; lastly, as still existing books, sources of our legal science. In like manner, the German law books of the thirteenth and fourteenth centuries are records of customary laws, therefore of law sources, and as preserved books, sources of our legal science. Hence also most writers use the expression without giving to their readers special information of these different imports, and they are not on that account to be blamed.

§ 7. GENERAL ORIGIN OF LAW.

What then are the grounds of origin of general law, or in what do the law sources consist ?

If one wished to conjecture on the matter, law may have a wholly different origin according as it is influenced by accident or by human will, reflection and wisdom. But this opinion is contradicted by the undoubted fact that wherever a jural relation comes into question and consciousness, a rule for it is already present, and therefore the discovery of one is neither necessary nor possible. In reference to this property of general law, by which in every given case in which it can be sought after, it already has an actual existence, we call it positive law.

If we further ask about the subject in which and for which positive law subsists, we find the people to be that subject. In the general consciousness of a people lives positive law, and hence we have to call it folk-law [Volksrecht]. It is by no means to be thought that it was the particular members of the people by whose arbitrary will, law was brought forth; in that case the will of individuals might perhaps have selected the same law, perhaps however, and more probably, very varied laws. Rather, it is the popular spirit living and working in common in all the individuals which gives birth to positive law, which to the consciousness of each individual therefore is not accidentally but necessarily one and the same law. Since then we acknowledge an invisible origin of positive law, we must dispense with documentary proof as to that origin: but this defect is common to our and every other view of that origin, since we discover in all peoples who have ever presented themselves within the limits of documented history an already existing positive law of which the original generation must lie beyond those limits. Nevertheless, there are not wanting proofs of another sort which are suitable to the special nature of the object. Such a proof lies in the universal, uniform recognition of positive law, and in the sentiment of inner necessity with which its conception is accompanied. This sentiment expresses itself most definitely in the primeval assertion of the divine origin of law or statutes; for a more manifest opposition to the idea of its arising from accident or the human will is not to be conceived. A second proof lies in the analogy of other peculiarities of peoples, which have in like manner an invisible origin reaching beyond authentic history, for example, the customs [Sitte] of social life and above all speech. In these is found the same independence of accident and free individual choice, the same generation from the activity of the popular spirit working in common in each individual; by virtue of their sensible nature, all of this is more evident and recognizable than in law. Indeed the individual nature of a particular people is determined and recognized solely by those common directions and activities of which speech, as the most evident, takes the first place.

But the form in which law lives in the common consciousness of a people is not that of abstract rules, it is as the living intuition of legal institutions in their organic connection, so that whenever the necessity arises for the rule to be conceived in its logical form, this must first be formed by an artificial process from out of that total vision. That form reveals itself in the symbolical acts which display in visible shape the essence of the jural relation and which finds expression more clearly and fundamentally in the original popular laws than in written laws.

In this assumption of the origin of positive law, we initially abstract from the progression of the life of a people in time. If we now look also at this operation upon law, we must above all ascribe to it a confirming force. The longer the convictions of law live in a people, the more deeply they become rooted in it. Moreover, law is developed by usage, and what originally was present as a mere germ will through practice assume a definite shape to the consciousness. But in this way change in the law is also generated. For as in the life of single individuals no moment of complete standstill can be perceived, but rather a continual organic development, so is it with the life of peoples and with each single element of which that concrete life is composed. Thus we find in speech a constant gradual shaping and development, and in like manner in law. This gradual formation is subject to the sarnie law of generation from inner power and necessity, independent of accident and individual will, just as was its original arising. But in this natural process of development the people experiences not merely a change in general, but it experiences it in a settled, regular series of events, and of these each has its peculiar relation to the expression of the popular spirit in which the law is generated. This appears in the clearest and strongest manner in the youth of a people, for then the connection is more intimate, the consciousness of it is more generally diffused and is less obscured by the variety of individual formation. Moreover in the same degree in which the formation of individuals becomes heterogeneous and predominant and in which a sharper division of employments, of acquirements, and of ranks produced by these, enters, the generation of law which rests upon the common consciousness becomes more difficult; and this mode of generation would disappear altogether if organs for that purpose were not now formed by the influence of these self-same new circumstances; these organs are legislation and legal science, the nature of which will be directly explained.

This new development of law may have an entirely different relation to the originally existing law. New institutions of law may be generated by it, the existing law transformed or it may be entirely swept away if it has become foreign to the thought and need of the age.

§ 8. PEOPLE.

The generation of law has been provisionally posited in the people as the active, personal subject. The nature of this subject shall now be more accurately defined.

When in the examination of the jural relation we remove by abstraction all its particular content, there remains to us as a common essence thereof the collective life of a multiplicity of persons regulated in a defined manner. We might naturally be led to stop short at this abstract conception of a multiplicity, and regard law to be the discovery of this multiplicity apart from which the external freedom of the individual could not subsist. But such an accidental encounter of an undefined multitude is a conception both arbitrary and entirely wanting in truth: and even if they found themselves so thrown together, the capacity for producing law would be entirely wanting, since the power of at once supplying a need is not given with a need. In fact, we find, as far as history informs us upon the matter, that wherever men live together, they stand in a spiritual community which reveals as well as establishes and develops itself by the use of speech. In this natural whole is the seat of the generation of law, for in the common popular spirit infusing individuals is found the power of satisfying the need recognized above.

But the boundaries of these individual peoples [Völkerindividuen] are certainly undefined and wavering, and this dubious condition also shows itself in the unity or variety of the law engendered in them. Thus as to kindred tribes it may appear uncertain whether they are to be regarded as one people or as several: in like manner we also frequently find in their law, if not complete consonance, at least affinity.

Even where the unity of a people is undoubted, within its limits are often found inner circles which are included in a special connection united through a particular connection side by side with the general union of the people, such as cities and villages, guilds, corporations of every sort which together form popular divisions of the whole. In these circles again a special generation of law may have its seat as particular law, side by side with the shared popular law which by that particular law is on many sides supplemented or altered.[9]

When we regard the people as a natural unity and to that degree as the subject of positive law, we ought not to think only of the individuals comprised in that people at any particular time; that unity rather runs through generations constantly replacing one another, and thus unites the present with the past and the future. This constant preservation of law is effected by tradition and this is conditioned by, and based upon, the ever gradual, not sudden, change of generations. The independence of law from the life of contemporary members of a people here asserted, appertains first to the unchanged continuation of legal rules, yet it is also the foundation of the gradual formation of law (§. 7) and in this connection we must ascribe to it a superior importance.

This view, by which the individual people is regarded as the generator and subject of positive or actual law, may appear too confined to some who might be inclined to ascribe that generation rather to the general spirit of humanity than to that of a particular people. On closer examination these two views do not appear conflicting. What is at work in an individual people is merely the general human spirit which reveals itself in that people in a particular manner. But the generation of law is a fact and a joint fact. This is conceivable only among those between whom a community of thought and action is not only possible but actual. Since such a community exists only within the limits of an individual people, here alone can actual law also be created, although the expression of a general human generative trait is perceived in its production; consequently, it is not at all the peculiar arbitrary will of several individual peoples, of which perhaps no single trace would be found in other peoples. Now then, therein is found the dissimilarity by which this product of the popular spirit is sometimes entirely peculiar to that single people, sometimes equally present in more peoples. How the Romans conceived this common basis of popular law as jus gentium will be shown below (§. 22).

§ 9. STATE, STATE LAW, PRIVATE LAW, PUBLIC LAW.

The people – to which we must, as to an invisible natural whole, ascribe undefined limits – nevertheless does not anywhere or at any time exist in this abstract manner. There rather works in that people an irrepressible inclination to manifest the invisible unity in a visible and organic form. This bodily shape of spiritual popular community is the state, and with it are likewise supplied definite boundaries of unity.

If we enquire as to the origin of the state, we must posit that origin in a higher necessity, in a formative power proceeding from within, as we above asserted generally of law; and this holds good not only of the existence of a state generally but also of the particular shape borne by the state in each people. For the creation of the state is likewise a species of the generation of law; indeed, it is certainly the highest stage of that generation.

If from the obtained standpoint we now contemplate law as a whole, we discern in it two areas, state law and private law. The first has for its object the state, that is, the organic manifestation of the people; the second, the totality of jural relations which envelop individuals in order that in them they may lead their inner life and fashion it in a defined shape.[10] When we compare these two areas of law, there are not wanting transitions and affinities. For the family has in its enduring arrangement as well as in the relation of rule and obedience an unmistakeable analogy to the state; and in like manner local communities, which are real parts of the state (§. 86), come close to the relation of individuals. Nevertheless, between the two areas this firmly established difference remains; in public law the whole appears as the end, the individual as subordinate, while in private law, by contrast, the individual man is an end on his own account, and each jural relation has reference only to his existence or his special circumstances.

Nevertheless the state has likewise a very manifold influence upon private law, and first of all upon the reality of its existence. For it is in the state that the people first obtains true personality and in consequence the capacity of acting. Apart from the state, we are able to ascribe to private law merely an invisible existence in concordant feelings, thoughts and manners; in the state, that law, by the establishment of judicature, gains its life and activity. This is not to imply that there ever in fact was a time in the life of peoples, prior to the discovery of the state, in which private law could have had this incomplete nature (state of nature). Rather, a people, as soon as it manifests itself as such, likewise manifests itself as a state, whatever shape it may have taken. This assertion therefore will hold good only of that state of a people which remains to us in thought, when we artificially abstract from it its character as state.

In this, the relation of individuals to the general law likewise gains its reality and completeness. Law has its existence in the shared popular spirit (§§. 7 and 8), therefore in their united will, which to that extent is also the will of each individual; but the individual can, by virtue of his freedom, in consequence of what he wills for himself, resist what he thinks and wills as a member of the whole. This contradiction is injustice [das Unrecht] or the violation of law, which must be annihilated if law is to subsist and rule. If this annihilation is to be independent of accident and maintain a regular certainty, this is only possible in the state; for in the state alone can legal rules stand as an external and objective thing face to face with the individual, and in this new connection, individual freedom capable of injustice appears restrained by the collective will and subsumed in it.

The state moreover has also the most evident influence upon the generation of law in private law; not merely upon its content, of which will yet be spoken more at length, but also upon the limits of the generation of law, from the consideration that the common spirit of a people must be more intimate and more active within the limits of the same state; while in different states, even of kindred races, it must be more remote and hindered in many ways. In like manner, the emergence of a particular folk-law (§. 8) is not excluded by the unity of the state, but is subject to this restriction, that by it the essential unity of the state must not be endangered. Now then, it would be erroneous in this respect to rank the influence of the state too high in comparison with that of other relations, or to conceive it as the exclusive determining factor. Thus in the Middle Ages, after the fall of the Western empire, there existed several German states consisting partly of German and partly of Roman subjects; in this condition the Roman subjects of the one state had the same Roman law as those of the other; the German subjects of the different states had at a least a kindred law, and this more or less complete legal community was not disturbed by states’ boundaries.

In order to guard the classification of the laws prevailing in a state as here set forth from the reproach of incompleteness, the following addition is necessary. I do not desire to restrict the state to the purposes of law; indeed, the theory does not presume to limit the freedom of individual development by asserting exclusive aims for the activity of the state. Nevertheless, its first and most unavoidable task is to make the idea of law dominant in the visible world. To this object leads a double activity of the state. First, it has to protect the individual who is injured in his right against that injury; we call the rules to which this activity is subject, civil procedure. Secondly, it has to defend and re-establish the injured right regardless of the individual interest. This is done by punishment, through which the human will, in the narrower field of law, imitates the law of ethical retribution prevailing in the higher world-order.[11] We call the rules to which this activity is subject criminal law, of which criminal procedure forms merely a part.[12] Civil procedure, criminal law and criminal procedure are therefore parts of state law and were so regarded by the Romans. The increasing strangeness of this conception in more recent times arises from the following circumstances. The administration of criminal law is often lodged with the same judicial authorities as is the protection of private law, and hence the treatment of the two matters has assumed a like shape. In civil procedure, moreover, the activity of the state is so interwoven with the rights of the individual that a complete separation is not practically attainable. Nevertheless, the inner nature here expressed of these legal disciplines cannot on that account be changed. In order to afford recognition on the one hand to the essence of the thing and on the other to its more practical bearings, it seems desirable to employ alongside the name state law, as is neither uncommon nor unsuitable, the more general name of public law, which embraces civil procedure and criminal law. This expression shall henceforth be employed.

The case is quite different with canon law. From a merely secular point of view, the church seems like every other association, and one might ascribe to it such a dependent and subordinate position as other corporations obtain partly in state law and partly in private law. Its importance as dominating the innermost nature of men does not admit of this treatment. In the various ages of world history, therefore, the church and canon law have occupied a very different position towards the state. Among the Romans the jus sacrum was a part of state law and was subordinated to the power of the state.[13] The world-embracing nature of Christianity excludes this purely national treatment. In the Middle Ages the church sought to subordinate the state to itself and to rule over it. We should regard the various Christian churches as existing alongside the state, though in manifold and intimate contact with it. Hence canon law is to us an area of law existing for itself, which must be subordinated neither to public nor to private law.

§ 10. DISCORDANT OPINIONS CONCERNING THE STATE.

The view here set forth regarding the origin and essence of the state has been far from finding general recognition.

In the first place, here again it is the indefinite concept of a multitude in general abstracted from popular unity which has often been thought as the subject of the state. This assertion is contradicted by the fact that at all times it is peoples who have made their appearance in the organic form of states, and that wherever an attempt has been made on an extensive scale, without regard to entire differences of origin, arbitrarily to bring together masses of men, as in the American slave states, the attempt has been very unsuccessful and insurmountable obstacles have stood in the way of the formation of a state. In contradiction of this viewpoint, we must again assert that the state arises spontaneously and naturally in a people, through the people, and for the people.

Moreover there is a widely prevalent opinion in accordance with which states must have taken their rise in the will of individuals, therefore by contract; this opinion has in its development led to results as pernicious as they are false. There is the assumption that the people who found it advantageous to found a particular state could just as well have remained entirely without a state, or in this or that manner have blended or restricted themselves to a state, or that they might have selected a different constitution altogether. Hereby not only are both the natural unity inherent in the people and the inner necessity once more overlooked, but especially also the circumstance that wherever any such deliberation is possible, there is infallibly already a state in existence as fact and law, so that there can no longer be any question, as these people would have it, of the arbitrary invention of a state, but only at most a question of destroying it. Two misconceptions have especially contributed to this error. First the perception of the great variety in state formation, that is to say, the historical and individual elements of states, which has been confounded with the free choice and arbitrary will of individuals; secondly, the constant and often unconscious interchanging of wholly different concepts which are denoted by the common name people. To wit, this name denotes:

1. The natural whole in which the state actually arises and continually carries on its existence, and about which there can be no question of choice or arbitrary will;

2. The aggregate of all the individuals living in a state at the same time;

3. The very same individuals minus the governing body, therefore those who obey in contradistinction to those who govern;

4. In republican states such as Rome, that organized aggregation of individuals in which according to the constitution the supreme power actually resides. Those now with whom these concepts have run into one another in a confused manner, would thereby be led to transfer the ideal right of the people as a natural whole (1) and the historical right of the Roman people (4) to the whole body of subjects and thus by an entire subversion of the truth, ascribe lordship to those who by law owe obedience. Even when they do not take this extreme step, but allow right and power to reside in the aggregate of all the individuals living at the time, therefore with the inclusion of the rulers (2), this does not improve matters much. Above all, because individuals as such and according to head count do not make the state, but only do so in its constitutional organization. For individuals never can will and act in their totality but always in a selected number, so that in regard to a majority (women and minors) there only remains recourse to the empty fiction of a representation. Lastly, because the very totality of individuals would merely be those existing at the present moment, while the ideal people here spoken of includes in it the entire future, and has therefore an imperishable existence (§. 8).

Nevertheless, an element of truth is contained in the views here controverted. Certainly accident and arbitrary will may exercise great influence upon the formation of a state, and in particular the boundaries of it are settled by conquest and dismemberment in a manner very different from that dictated by popular unity. On the other hand a foreign element may often be completely assimilated to the state; the possibility of such assimilation has its conditions and stages, as these are furnished by some affinity of the new element and also by the innate perfection of the receiving state. But all such events, however often they may appear in history, are merely anomalies. The people does not on that account the less remain the natural basis of the state, and formation by indwelling power, its natural cause of origin. If now a heterogeneous, historical moment enters into this formative process, it may be overcome and assimilated by the ethical power and soundness of condition of the people; if this assimilation does not take place, it produces a condition of weakness. This explains how that which originally was force and injustice can gradually be so changed by the power of attraction indwelling in the legal condition that it passes into it as a new, legitimate element. It is altogether objectionable, even rash to try to represent these anomalies which disturb and put to the test the ethical force as being the real ground of origin of the state, and to seek in this the only possible protection against the dangerous theory which makes a state arise from the voluntary contract of its individual members.[14] With such a rescue attempt, it is difficult to say which is more hazardous, the disease or the remedy.

§ 11. THE LAW OF NATIONS.

If we go on to contemplate the relation of several peoples and states subsisting near one another, that relation will appear to us at first similar to the relation of individuals who are brought together by accident without being bound together by community of race. If each of them is well-meaning and cultured, they will apply in their accidental proximity the consciousness of law inherent in each stemming from his earlier relations, and they will thus arbitrarily establish a legal condition which infallibly will be more or less imitated, and consequently carried over from those relations. In like manner, several independent states may voluntarily apply that which in each resides as law, as far as it is suitable and as they find it convenient; but even so, this does not give rise to any law. Nevertheless, among different peoples a community of legal consciousness may arise like that which generates positive law in a people. The basis of this spiritual communion consists partly of a community of race, partly and principally in common religious convictions. Upon this is founded the law of nations which exists especially among the Christian states of Europe but which was not unknown to the ancient nations; for example, it appears among the Romans as jus feciale. And we ought to regard it as positive law, although only as incomplete legal formation, on two grounds: First, by reason of the incompleteness of any secure content, and secondly because there is wanting to it that real foundation which is given by the power of the state and especially by the judiciary to the right of the individual members of the same people (§. 9).

Meanwhile the progressive ethical formation as based on Christianity leads each people to apply analogically that positive law of nations even to entirely foreign peoples by whom this mode of thinking is not shared and this practice not requited. Such an application however has a purely ethical character, and not the nature of a positive law.

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[1] Although Cicero carefully distinguishes between himself and the jurists, he was far from believing that he or any other statesman must know less than a jurist of the constitution, jus sacrum, etc. Ulpian te be sure gives to jurisprudentia a much wider scope (L. 10. §. 2. D. de J. et J.); this does not arise merely from the indefiniteness of his explanation and still less from an undue exaltation of his science, but from the entirely altered position of statesmen and jurists in his time.

[2] This opinion arises from the erroneous view that with the dissolution of an empire, everything must cease which was created by it or under its influence. An entirely similar case is found in the destruction of the Western Empire. In this case as well, many assert that the Roman law must by the conquest have disappeared and did practically vanish. This assertion at least would not easily find any partisans anymore.

[3] Thus for example it will be necessary to exhibit the antiquated portions of some laws by reason of the necessary regard to the relation of the sources of law dependent upon these portions.

[4] Note by the translator: The description given of jural relation (Rechtsverhältnis) in this and other places will show how inadequate the term is to the denoting of the very complex conception. The literal meaning of the German word is relation of right or law. That word no more than the English by its etymology expresses the conception. It is therefore a technical phrase of this work, and thoroughly explained as it is, will create no difficulty.

[5] Cf. Stahl, Philosophie des Rechts [1833], Vol. II, Book 1, pp. 165, 166.

[6] These convictions first arose in the writer first through closer acquaintance with the Roman jurists who were great precisely in this matter, and have been developed and confirmed through many years of engagement with legal practice.

[7] The general theory of these grounds of origin is contained in the third chapter of the second book.

[8] That combination, leaving aside the moderns, is found in several passages of Cicero (below, §. 22, note m.) As here contracts are wrongly elevated into sources, so on the other hand by an opposite error, statutes are dragged down to the same line with the grounds of origin of jural relations, in order to save the false theory of Titulus and modus adquirendi (Hopfner Commentar, §. 293.) The ambiguous expression autonomy has often contributed to the former error.

[9] Thus arose in Rome the ancient customary law of individual gentes. Dirksen, Civil. Abhandlungen, Vol. II, p. 90.

[10] L. 1, de J. and J. (I.1) Publicum jus est quod ad statum rei Romanae spectat; privatum quod ad singulorum utilitatem. Sunt enim quaedam publice utilia, quaedam privatim. See L. 2, §. 46, de orig. jur. (I.2).

[11] To this degree one may say that the general ethical ordinance of retribution in a limited way assumes the nature of a legal institution [Rechtsanstalt] and as such ought to be carried out by the state. See Hegel Naturrecht, §§. 102,103, 220; Klenze, Lehrbuch des Strafrechts, pp. X–XVII.

[12] It depends upon the positive law of each state, how far the state will directly exercise this law or leave to the injured individual the pursuit of his own right. This last arrangement is the basin of the private penal law of the Romans. A more complete developement of the power of the state will load to the abandonment therein of this latter course.

[13] L. 1, §. 2, de just et jur. (I.1).

[14] Haller, Restauration der Staatswissenschaft.