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
Roman law began to assume bigger forms, this was only one aspect of
the fact that Roman intellect had subjugated Hellenism. The work of
forming later Classical law passed from Hellenism to Rome--i.e., from
a sum of city-states, which one and all had been impressively made
aware of their individual impotence, to one single city whose whole
activity was in the end devoted to the upholding and exploitation of
an effective primacy. Thus it came about that Hellenism never formed
a jurisprudence in the Greek tongue. When the Classical world entered
upon a stage in which it was ripe for this science (the latest of all),
there was but _one_ lawgiving city that counted in the matter.
In reality, insufficient regard has been paid to the fact that Greek
and Roman law are not parallel in time but successive. Roman law is
the younger and presupposes the long experience of the elder;[67] it
was built up, in fact, late and, with this exemplar before it, very
swiftly. It is not without significance that the flowering-time of the
Stoic philosophy, which deeply affected juridical ideas, followed that
of Greek, but preceded that of Roman, law.
III
This jurisprudence, however, was built up by the mind of an intensely
ahistorical species of man. Classical law, consequently, is law _of
the day and even the moment_; it was in its very idea occasional
legislation for particular cases, and when the case was settled, it
ceased to be law. To extend its validity over subsequent cases would
have been in contradiction to the Classical sense of the present.
The Roman prætor, at the beginning of his year of office, issued an
edict in which he set forth the rules that he intended to follow,
but his successor next year was in nowise bound to them. And even
this limitation of a year on the validity of the rules did not mean
that this was actually the duration of the rules. On the contrary
(particularly after the _Lex Æbutia_) the prætor formulated in each
individual case the concrete rule of law for the judges[68] to whom he
remitted the matter for judgment, which had to be according to this
rule and no other. That is, the prætor produced, and indeed generated,
a _present_ law without duration.[69]
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