Primitive law is practical; it develops through the adjustment of social
exigencies. Gradually, however, in an intelligent community which is
progressing under favouring influences, some definite consciousness of
legal propriety, utility, or justice, makes itself articulate in
statements of general principles of legal right and in a steady endeavour
to adjust legal relationships and adjudicate actual controversies in
accordance. This endeavour to formulate just and useful principles, and
decide novel questions in accordance with them, and enunciate new rules in
harmony with the body of the existing law, is jurisprudence, which thus
works always for concord, co-ordination, and system.
There was a jurisprudential element in the early law of Rome. The Twelve
Tables are trenchant announcements of rules of procedure and substantial
law. They have the form of the general imperative: “Thus let it be; If one
summons [another] to court, let him go; As a man shall have appointed by
his Will, so let it be; When one makes a bond or purchase,[341] as the
tongue shall have pronounced it, so let it be.” These statements of legal
rules are far from primitive; they are elastic, inclusive, and suited to
form the foundation of a large and free legal development. And the
consistency with which the law of debt was carried out to its furthest
cruel conclusion, the permitted division of the body of the defaulting
debtor among several creditors,[342] gave earnest of the logic which was
to shape the Roman law in its humaner periods. Moreover, there is
jurisprudence in the arrangement of the Laws of the Twelve Tables.
Nevertheless the jurisprudential element is still but inchoate.
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