C.D. Warner, et al., comp. The Library of the World’s Best Literature.
An Anthology in Thirty Volumes. 1917.
Importance of a Knowledge of Roman Law: and the Effect of the Code Napoléon
By Sir Henry Sumner Maine (1822–1888)
I
The historical connection between the Roman jurisprudence and our own appears to be now looked upon as furnishing one very strong reason for increased attention to the civil law of Rome. The fact, of course, is not now to be questioned. The vulgar belief that the English common law was indigenous in all its parts was always so easily refuted, by the most superficial comparison of the text of Bracton and Fleta with the ‘Corpus Juris,’ that the honesty of the historians who countenanced it can only be defended by alleging the violence of their prejudices; and now that the great accumulation of fragments of ante-Justinianean compendia, and the discovery of the MS. of Gaius, have increased our acquaintance with the Roman law in the only form in which it can have penetrated into Britain, the suspicion of a partial earlier filiation amounts almost to a certainty. The fact of such a filiation has necessarily the highest interest for the legal antiquarian, and it is of value besides for its effect on some of the coarser prepossessions of English lawyers. But too much importance should not be attached to it. It has ever been the case in England that every intellectual importation we have received has been instantly colored by the peculiarities of our national habits and spirit. A foreign jurisprudence interpreted by the old English common-lawyers would soon cease to be foreign, and the Roman law would lose its distinctive character with even greater rapidity than any other set of institutions. It will be easily understood that a system like the laws of Rome, distinguished above all others for its symmetry and its close correspondence with fundamental rules, would be effectually metamorphosed by a very slight distortion of its parts, or by the omission of one or two governing principles. Even though, therefore, it be true—and true it certainly is—that texts of Roman law have been worked at all points into the foundations of our jurisprudence, it does not follow from that fact that our knowledge of English law would be materially improved by the study of the ‘Corpus Juris’; and besides, if too much stress be laid on the historical connection between the systems, it will be apt to encourage one of the most serious errors into which the inquirer into the philosophy of law can fall. It is not because our own jurisprudence and that of Rome were once alike that they ought to be studied together; it is because they will be alike. It is because all laws, however dissimilar in their infancy, tend to resemble each other in their maturity; and because we in England are slowly, and perhaps unconsciously or unwillingly, but still steadily and certainly, accustoming ourselves to the same modes of legal thought, and to the same conceptions of legal principle, to which the Roman jurisconsults had attained after centuries of accumulated experience and unwearied cultivation.
The attempt, however, to explain at length why the flux and change which our law is visibly undergoing furnish the strongest reasons for studying a body of rules so mature and so highly refined as that contained in the ‘Corpus Juris,’ would be nearly the same thing as endeavoring to settle the relation of the Roman law to the science of jurisprudence; and that inquiry, from its great length and difficulty, it would be obviously absurd to prosecute within the limits of an essay like the present. But there is a set of considerations of a different nature, and equally forcible in their way, which cannot be too strongly impressed on all who have the control of legal or general education. The point which they tend to establish is this: the immensity of the ignorance to which we are condemned by ignorance of Roman law. It may be doubted whether even the best educated men in England can fully realize how vastly important an element is Roman law in the general mass of human knowledge, and how largely it enters into and pervades and modifies all products of human thought which are not exclusively English. Before we endeavor to give some distant idea of the extent to which this is true, we must remind the reader that the Roman law is not a system of cases, like our own. It is a system of which the nature may, for practical purposes though inadequately, be described by saying that it consists of principles, and of express written rules. In England, the labor of the lawyer is to extract from the precedents a formula, which while covering them will also cover the state of facts to be adjudicated upon; and the task of rival advocates is, from the same precedents or others to elicit different formulas of equal apparent applicability. Now, in Roman law no such use is made of precedents. The ‘Corpus Juris,’ as may be seen at a glance, contains a great number of what our English lawyers would term cases; but then they are in no respect sources of rules—they are instances of their application. They are, as it were, problems solved by authority in order to throw light on the rule, and to point out how it should be manipulated and applied. How it was that the Roman law came to assume this form so much sooner and more completely than our own, is a question full of interest, and it is one of the first to which the student should address himself; but though the prejudices of an Englishman will probably figure to him a jurisprudence thus constituted as, to say the least, anomalous, it is nevertheless quite as readily conceived, and quite as natural to the constitution of our own system. In proof of this, it may be remarked that the English common law was clearly conceived by its earliest expositors as wearing something of this character. It was regarded as existing somewhere in the form of a symmetrical body of express rules, adjusted to definite principles. The knowledge of the system, however, in its full amplitude and proportions, was supposed to be confined to the breasts of the judges and the lay public, and the mass of the legal profession were only permitted to discern its canons intertwined with the facts of adjudged cases. Many traces of this ancient theory remain in the language of our judgments and forensic arguments; and among them we may perhaps place the singular use of the word “principle” in the sense of a legal proposition elicited from the precedents by comparison and induction.
The proper business of a Roman jurisconsult was therefore confined to the interpretation and application of express written rules; processes which must of course be to some extent employed by the professors of every system of laws—of our own among others, when we attempt to deal with statute law. But the great space which they filled at Rome has no counterpart in English practice; and becoming, as they did, the principal exercise of a class of men characterized as a whole by extraordinary subtlety and patience, and in individual cases by extraordinary genius, they were the means of producing results which the English practitioner wants centuries of attaining. We who speak without shame—occasionally with something like pride—of our ill success in construing statutes, have at our hand nothing distantly resembling the appliances which the Roman jurisprudence supplies, partly by definite canons and partly by appropriate examples, for the understanding and management of written law. It would not be doing more than justice to the methods of interpretation invented by the Roman lawyers, if we were to compare the power which they give over their subject-matter to the advantage which the geometrician derives from mathematical analysis in discussing the relations of space. By each of these helps, difficulties almost insuperable become insignificant, and processes nearly interminable are shortened to a tolerable compass. The parallel might be carried still further, and we might insist on the special habit of mind which either class of mental exercise induces. Most certainly nothing can be more peculiar, special, and distinct than the bias of thought, the modes of reasoning, and the habits of illustration, which are given by a training in the Roman law. No tension of mind or length of study which even distantly resembles the labor of mastering English jurisprudence is necessary to enable the student to realize these peculiarities of mental view; but still they cannot be acquired without some effort, and the question is, whether the effort which they demand brings with it sufficient reward. We can only answer by endeavoring to point out that they pervade whole departments of thought and inquiry of which some knowledge is essential to every lawyer, and to every man of decent cultivation….
It may be confidently asserted, that if the English lawyer only attached himself to the study of Roman law long enough to master the technical phraseology and to realize the leading legal conceptions of the ‘Corpus Juris,’ he would approach those questions of foreign law to which our courts have repeatedly to address themselves, with an advantage which no mere professional acumen acquired by the exclusive practice of our own jurisprudence could ever confer on him. The steady multiplication of legal systems borrowing the entire phraseology, adopting the principles, and appropriating the greater part of the rules, of Roman jurisprudence, is one of the most singular phenomena of our day, and far more worthy of attention than the most showy manifestations of social progress. This gradual approach of Continental Europe to a uniformity of municipal law dates unquestionably from the first French Revolution. Although Europe, as is well known, formerly comprised a number of countries and provinces which governed themselves by the written Roman law, interpolated with feudal observances, there does not seem to be any evidence that the institutions of these localities enjoyed any vogue or favor beyond their boundaries. Indeed, in the earlier part of the last century, there may be traced among the educated men of the Continent something of a feeling in favor of English law; a feeling proceeding, it is to be feared, rather from the general enthusiasm for English political institutions which was then prevalent, than founded on any very accurate acquaintance with the rules of our jurisprudence. Certainly, as respects France in particular, there were no visible symptoms of any general preference for the institutions of the pays de droit écrit as opposed to the provinces in which customary law was observed. But then came the French Revolution, and brought with it the necessity of preparing a general code for France one and indivisible. Little is known of the special training through which the true authors of this work had passed; but in the form which it ultimately assumed, when published as the Code Napoléon, it may be described without great inaccuracy as a compendium of the rules of Roman law then practiced in France, cleared of all feudal admixture; such rules, however, being in all cases taken with the extensions given to them and the interpretations put upon them by one or two eminent French jurists, and particularly by Pothier. The French conquests planted this body of laws over the whole extent of the French empire, and the kingdoms immediately dependent upon it; and it is incontestable that it took root with extraordinary quickness and tenacity. The highest tribute to the French codes is their great and lasting popularity with the people, the lay public, of the countries into which they have been introduced. How much weight ought to be attached to this symptom, our own experience should teach us; which surely shows us how thoroughly indifferent in general is the mass of the public to the particular rules of civil life by which it may be governed, and how extremely superficial are even the most energetic movements in favor of the amendment of the law. At the fall of the Bonapartist empire in 1815, most of the restored governments had the strongest desire to expel the intrusive jurisprudence which had substituted itself for the ancient customs of the land. It was found, however, that the people prized it as the most precious of possessions: the attempt to subvert it was persevered in in very few instances, and in most of them the French codes were restored after a brief abeyance. And not only has the observance of these laws been confirmed in almost all the countries which ever enjoyed them, but they have made their way into numerous other communities, and occasionally in the teeth of the most formidable political obstacles. So steady, indeed, and so resistless has been the diffusion of this Romanized jurisprudence, either in its original or in a slightly modified form, that the civil law of the whole Continent is clearly destined to be absorbed and lost in it. It is, too, we should add, a very vulgar error to suppose that the civil part of the codes has only been found suited to a society so peculiarly constituted as that of France. With alterations and additions, mostly directed to the enlargement of the testamentary power on one side and to the conservation of entails and primogeniture on the other, they have been admitted into countries whose social condition is as unlike that of France as is possible to conceive.