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]

Similar in appearance, but so profoundly different in meaning as to leave no doubt as to the great gap which is set between Classical and Western Law, is that inspired and truly Germanic notion of English jurisprudence, the creative power of the judge who “declares” the law. His business is to apply a law which in principle possesses eternal validity. Even the application of the existing body of laws he can regulate, according to the situations disclosed in the course of the case, by means of his “rules” (which have nothing in common with the prætor’s). And if he should conclude in the presence of a particular set of facts that current law is defective in respect of these, he can _fill the gap at once_, and thus in the very middle of a trial create new law, which (if concurred in by the judicial body in the due forms) _becomes thereafter part and parcel of the permanent stock of law_. This is what makes it so completely un-Classical. In the old jurisprudence, the gradual formation of a stock of rules was due purely to the fact that public life followed a substantially homogeneous course throughout a particular period, and produced again and again the same situations to be dealt with--rules _not_ deliberately invested with validity for the future, but more or less recreated again and again as empirical rulings _ad hoc_. The sum of these rulings--not a system, but a collection--came to constitute “the law” as we find it in the later legislation by prætor’s edict, each successive prætor having found it practically convenient to take over substantial portions of his predecessor’s work.

Experience, then, means for the ancient lawgiver something different from what it means to us. It means, not the comprehensive outlook over a consistent mass of law that contains implicitly every possible case, associated with practical skill in applying it, but the experimental knowledge that certain jural situations are for ever recurring, so that one can save oneself the trouble of forming new law on every occasion.

The genuine Classical form for the slow accretion of legal material is an almost automatic summation of individual νομοί _leges, edicta_, as we find it in the heyday of the Roman prætor. All the so-called legislations of Solon, Charondas, and the Twelve Tables are nothing but occasional collections of such edicts as had been found to be useful. The Law of Gortyn,[70] which is more or less contemporary with the Twelve, is a supplement to some older collection. A newly-founded city would promptly provide itself with such a collection, and in the process a certain amount of dilettantism would slip in (cf. the lawmakers satirized by Aristophanes in _The Birds_). But there is never system in them, still less any intention of establishing enduring law thereby.

In the West it is conspicuously the other way about. The tendency is from the first to bring the entire living body of law into a general code, ordered for ever and exhaustively complete, containing in advance the decision of every conceivable future problem.[71] All Western law bears the stamp of the future, all Classical the stamp of the moment.