The decline of the West, Volume 2 : $b Perspectives of world-historySpengler, Oswald
History
The decline of the West, Volume 2 : $b Perspectives of world-history
Spengler, Oswald
Civilization -- History
As Classical religion was State religion through and through, there
is no distinction made as to the fount of law; real law and divine
law were made, like personal law, by the citizen, and the relations
of things and of gods to persons were precise and definite. Now, it
was a fact of decisive significance for the Classical jurisprudence
that it was always the product of immediate public experience--and,
moreover, not the professional experience of the jurists, but the
practical everyday experience of men who counted in political and
economic life generally. The man who followed the public career
in Rome had necessarily to be jurist, general, administrator, and
financial manager. When he gave judgment as prætor, he had behind him
a wide experience of many fields other than law. A judicial _class_,
professionally (let alone theoretically) specialized in law as its sole
activity, was entirely unknown to the Classical. The whole outlook
of the later jurisprudence was determined by this fact. The Romans
were here neither systematists nor historians nor theorists, but just
splendidly practical. Their jurisprudence is an _empirical science
of individual cases_, a refined technique, and not in the least a
structure of abstractions.[63]
It would give an incorrect idea to oppose Greek and Roman law to
one another as quantities of the same order. Roman law in its whole
development is an individual city law, one amongst hundreds of such,
and Greek law as a unity never existed at all. Although Greek-speaking
cities very often had similar laws, this did not alter the fact that
the law of each was its own and no other’s. Never did the idea of
a general Doric, still less a general Hellenic, legislation arise.
Such notions were wholly alien to Classical thought. The _jus
civile_ applied only to Quirites--foreigners, slaves and the whole
world outside the city[64] simply did not count in the eyes of the
law, whereas even the _Sachsenspiegel_[65] evidences already our
own deep-felt idea that there can only really be one law. Until far
into Imperial times the strict distinction was maintained between
the _jus civile_ of citizens and the _jus gentium_ for “other
people” who came within the cognizance of Rome’s jurisdiction as
sojourners.[66] (It need hardly be added that this “law of nations”
has no sort of resemblance to that which we call by the same name.)
It was only because Rome as a unit-city attained--as under other
conditions Alexandria might have attained--to “Imperium” over the
Classical world that Roman law became pre-eminent, not because of its
intrinsic superiority, but firstly through Rome’s political success
and afterwards because of Rome’s monopoly of practical experience on
the large scale. The formation of a general Classical jurisprudence of
Hellenistic cast--if we are entitled to call by that name an affinity
of spirit in a large number of separate legal systems--falls in a
period when Rome was still politically a third-rate power. And when
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