From the period of Customary Law we come to another sharply defined
epoch in the history of jurisprudence. We arrive at the era of Codes,
those ancient codes of which the Twelve Tables of Rome were the most
famous specimen. In Greece, in Italy, on the Hellenised sea-board of
Western Asia, these codes all made their appearance at periods much
the same everywhere, not, I mean, at periods identical in point of
time, but similar in point of the relative progress of each community.
Everywhere, in the countries I have named, laws engraven on tablets
and published to the people take the place of usages deposited with
the recollection of a privileged oligarchy. It must not for a moment
be supposed that the refined considerations now urged in favour of
what is called codification had any part or place in the change I have
described. The ancient codes were doubtless originally suggested by
the discovery and diffusion of the art of writing. It is true that the
aristocracies seem to have abused their monopoly of legal knowledge;
and at all events their exclusive possession of the law was a
formidable impediment to the success of those popular movements which
began to be universal in the western world. But, though democratic
sentiment may have added to their popularity, the codes were certainly
in the main a direct result of the invention of writing. Inscribed
tablets were seen to be a better depositary of law, and a better
security for its accurate preservation, than the memory of a number of
persons however strengthened by habitual exercise.
The Roman code belongs to the class of codes I have been describing.
Their value did not consist in any approach to symmetrical
classifications, or to terseness and clearness of expression, but in
their publicity, and in the knowledge which they furnished to
everybody, as to what he was to do, and what not to do. It is, indeed,
true that the Twelve Tables of Rome do exhibit some traces of
systematic arrangement, but this is probably explained by the
tradition that the framers of that body of law called in the
assistance of Greeks who enjoyed the later Greek experience in the art
of law-making. The fragments of the Attic Code of Solon show, however,
that it had but little order, and probably the laws of Draco had even
less. Quite enough too remains of these collections, both in the East
and in the West, to show that they mingled up religious, civil, and
merely moral ordinances, without any regard to differences in their
essential character; and this is consistent with all we know of early
thought from other sources, the severance of law from morality, and of
religion from law, belonging very distinctly to the _later_ stages of
mental progress.
Public-domain text, read in full here on John Shaqi.
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