Decline of the West - 05
These populations no longer possessed a soul. Consequently they could
no longer have a history proper to themselves. At best they might acquire
some significance重大意义 as an object in the history of an alien Culture,
and whatever deeper meaning this relation possessed would be derived
entirely from the will of the alien Life.
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Any effective historical happening that does take place on
the soil of an old Civilization acquires its consistency★一致性/连贯性 as a
course进程 of events from elsewhere and never from any part
played in it by the man of that soil.
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And so once again we find ourselves regarding the phenomenon of
“world history” under the two aspects — life courses of the
great Cultures and relations between them.
==ORIGIN AND LANDSCAPE (C) THE RELATIONS BETWEEN THE CULTURES:==
Now, it was a fact of decisive significance for the Classical
jurisprudence法理学 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 Romans were here neither systematists nor
historians nor theorists, but just splendidly practical.
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Their jurisprudence is an empirical /ɪmˈpɪrɪkl/ 以观察或实验为依据的
science of individual cases, a refined technique, and not in the
least a structure of abstractions.
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.
★divine 神圣的/占卜 v.
Now, legal thought is forced to attach★附着 itself to something
tangible — there must be something before it can abstract its
concepts; it must have something from which to abstract.
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And it was the misfortune of Western jurisprudence法理学 that, instead of
quarrying采集 in strong, firm custom of social and economic life,
it abstracted prematurely过早地/贸然地 and in a hurry from Latin writings.
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The Western jurist became a philologist, and practical experience
of life was replaced by scholarly experience in the purely logical
separation and disposition of legal concepts on self-contained foundations.
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Owing to this, we have been completely cut off from touch
with the fact that private law is meant to represent the
social and economic existence of its period.
★★★ deduce 推论/演绎出
Are persons and things, in the sense of present day legislation,
law concepts at all? No! They merely serve to draw the ordinary distinction,
the zoological关于动物的 distinction★特征, so to say, between man and the rest.
It must be emphasized then — and with all rigor严格 — that Classical law
was a law of bodies, while ours is a law of functions.
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The Romans created a juristic法学的 statics; our task is juristic dynamics.
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For us persons are not bodies,but units of force and will; and things
are not bodies, but aims, means, and creations of these units.
For a Roman the slave was a thing which produced new things. A writer like
Cicero could never have conceived of “intellectual property,” let alone
property in a practical实际的 notion or in the potentialities of talent;
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for us, on the contrary, ★:the organizer or inventor or promoter赞助人 is a
generative有生产力的 force which works upon other, executive, forces, by giving
direction, aim, and means to their action.Both belong to economic
life, not as possessors of things, but as carriers载体 of energies.
Our whole social,economic, and technical life is waiting to be understood,
at long last, in this wise. We shall need a century and more of keenest热衷的
and deepest thought to arrive at the goal. And the prerequisite先决条件 is a
wholly new kind of preparatory预备的 training in the jurist. It demands:
1. An immediate, extended, and practical experience in the economic life
of the present.
2. An exact knowledge of the legal history of the West, with constant
comparison of German, English, and “Roman” development.
3. Knowledge of Classical jurisprudence, not as a model for principles of
present day validity, but as a brilliant example of how a law can
develop strong and pure out of the practical life of its time.
Roman law has ceased to be our source for principles of eternal validity.
But the relation between Roman existence and Roman law ideas gives it a
renewed value for us. We can learn from it how we have to build up our law
out of our experiences.
