But this, it may be said, is contradicted by the fact that there actually were Classical law-works compiled by professional jurists for permanent use. Undoubtedly so. But we must remember that we are completely ignorant of Early Classical law (1100-700) and it is pretty certain that the customary law of the country-side and the nascent town was never noted down as that of the Gothic age was set forth in the _Sachsenspiegel_ or that of the Early Arabian in the _Syrian Law-book_.[72] The earliest stratification that we can now detect consists of the collections (from 700 B.C.) ascribed to mythical or semi-mythical personages like Lycurgus, Zaleucus, Charondas, and Dracon,[73] and certain Roman kings.[74] That these existed the form of the saga shows, but of their real authors, the actual process of their codification, and their original contents even the Greeks of the Persian War period were ignorant.

A second stratification, corresponding to Justinian’s code and to the “Reception” of Roman Law in Germany, is connected with the names of Solon (600), Pittacus (550), and others. Here the laws have already attained to a structure and are inspired by the city; they are described as “politeiai,” “nomoi,” in contrast to old “thesmai” and “rhetrai.”[75] In reality, therefore, we only know the history of _late_ Classical law. Now, why these sudden codifications? A mere look at these names shows that at bottom they were not processes of putting down the results of pure experience, but _decisions of political power problems_.

It is a grave error to suppose that a law that surveys all things evenly and without being influenced by political and economic interests can exist at all. Such a state of things can be pictured, and is always being pictured, by those who suppose that the imagining of political possibilities is a political activity. But nothing alters the fact that such a law, born of abstractions, does not exist in real history. Always the law contains in abstract form the world-picture of its author, and every historical world-picture contains a political-economic _tendency_ dependent, not upon what this man or that thinks, but upon what is practically intended by the class which in fact commands the power and, with it, the legislation. Every law is established by a class in the name of the generality. Anatole France once said that “our law in majestic equality forbids the rich no less than the poor to steal bread and to beg in the street.”[76] A one-sided justice no doubt. But equally the other side will always try to win sole authority for laws derived from _its_ outlook upon life. These legislative codes are one and all political acts, and party-political acts at that--in the case of Solon a democratic constitution (πολιτεία) combined with private laws (νομοί) of the same stamp, in that of Dracon and the Decemvirs[77] an oligarchic constitution fortified by private law. It was left to Western historians, accustomed to their own durable law, to undervalue the importance of this connexion; Classical man was under no misapprehension as to what really happened in these cases. The product of the Decemvirs was in Rome the last code of purely patrician character. Tacitus calls it the end of right law (“_finis æqui juris_,” _Annals_, III, 27). For, just as the fall of the Decemvirs was followed very significantly by the rise of another Ten, the Tribunes, so immediately the _jus_ of the Twelve Tables and the constitution on which it was founded began to be attacked by the undermining process of the _lex rogata_ (people’s law), which set itself with Roman constancy to do what Solon had achieved in one act in the case of Dracon’s work, the πατρίος πολιτεία which was the law-ideal of the Attic oligarchy. Thenceforward Dracon and Solon were the “slogans” in the long battle between Oligarchy and Demos, which in Rome meant Senate and Tribunate. The Spartan constitution associated with the name “Lycurgus” not only stood for the ideal of Dracon and the Twelve Tables, but concreted it. We can see, parallel with the closely related course of events in Rome, the tendency of the two Spartan kings to evolve from the condition of Tarquinian tyrants to that of tribunes of the Gracchan kind; the fall of the last Tarquins or the institution of the Decemvirs--a _coup d’état_ of one kind or another against the tribunician tendency[78]--corresponds more or less to the fall of Cleomenes (488) and of Pausanias (470); and the revolution of Agis III and Cleomenes III (about 240) aligns itself with the political activity of C. Flaminius, which began only a few years later. But never in Sparta were the kings able to achieve any thorough-going success over the senatorial element represented by the Ephors.

In the period of these struggles, Rome had become a megalopolis of the late-Classical type. The rustic instincts were more and more pushed back by the intelligence of the city.[79] Consequently from about 350 we find side by side with the _lex rogata_ of the people the _lex data_, the administrative law, of the prætor. With this the Twelve Tables idea drops out of the contest and it is the prætor’s edict that becomes the football of the party battle.

It did not take long for the prætor to become the centre of both legislation and judicial practice. And presently, corresponding to the political extension of the city’s power, the jurisdiction of the prætor and the field of his _jus civile_--the law of the citizens--begin to diminish in significance and the peregrin prætor with his _jus gentium_--the law of the alien--steps into the foreground. And when finally the whole population of the Classical world, save the small part possessing Roman citizenship, was comprised in the field of this alien law, the _jus peregrinum_ of the city of Rome became practically an imperial law. All other cities--and even Alpine tribes and migrant Bedouin clans were _civitates_ from the administrative point of view--retained their local laws only as supplements, not alternatives, to the peregrin law of Rome.

It marked the close of Classical law-making, therefore, when Hadrian (about A.D. 130) introduced the _Edictum perpetuum_, which gave final form to the well-established corpus of the annual pronouncements of the prætors and forbade further modifications thereof. It was still, as before, the prætor’s duty to publish the “law of his year,” but, even though this law had no greater degree of validity than corresponded to his administrative powers and was not the law of the Empire, he was obliged thenceforth to stick to the established text.[80] It is the very symbol of the petrified “Late” Civilization.[81]

With the Hellenistic age began jurisprudence, the _science_ of law, the systematic comprehension of the law which men actually apply. Since legal thought presupposes a substance of political and economic relations, in the same way as mathematical thought presupposes physical and technical elements of knowledge,[82] Rome very soon became _the home of Classical jurisprudence_. Similarly in the Mexican world it was the conquering Aztecs whose academies (e.g., Tezcuco) made law the chief subject of study. Classical jurisprudence was the Roman’s science, and his only one. At the very moment when the creative mathematic closes off with Archimedes, juristic literature begins with Ælius’s _Tripertita_, a commentary on the Twelve (198 B.C.).[83] The first systematic private law was written by M. Scævola about 100. The genuine maturity of Classical law is in the two centuries 200-0--although we to-day, with quaint perversity, apply the time to a period which was really that of Early Arabian law. And from the relics of these two literatures we can measure the greatness of the gap that separates the thought of two Cultures. The Romans treat only of cases and their classification; they never analyse a basic idea such as, for instance, judicial error. They distinguish carefully the sorts of contracts, but they have no conception of Contract as an idea, or of any theories as to invalidity or unsoundness. “Taking everything into account,” says Lenel,[84] “it is clear that the Romans cannot possibly be regarded as exemplars of scientific method.”

The last phase is that of the schools of the Sabiniani and Proculiani (Augustus to about 160 A.D.). They are scientific schools like the philosophical schools in Athens, and in them, possibly, the expiring stages of the conflict between the senatorial and the tribunician (Cæsarian) conceptions of law were fought, for amongst the best of the Sabiniani were two descendants of Cæsar’s slayers and one of the Proculiani was picked upon by Trajan as his potential successor. While the method was to all intents and purposes settled and concluded, the practical fusion of the citizen’s statute-law (_jus civile_) and the prætor’s edict (_jus honorarium_) was carried out here.

The last landmark of Classical jurisprudence, so far as we know, was the _Institutes_ of Gaius (about 161).

_Classical law is a law of bodies._ In the general stock composing the world it distinguishes bodily Persons and bodily Things and, like a sort of Euclidean mathematic of public life, establishes ratios between them. The affinity between mathematical and legal thought is very close. The intention, in both, is to take the prima facie data, to separate out the sensuous-incidental, and to find the intellectually basic principle--the _pure_ form of the object, the _pure_ type of the situation, the _pure_ connexity of cause and effect. Life, in the Classical, presents itself to the critical waking-consciousness of the Classical man in a form penetrated with Euclidean character, and the image that is generated in the legal mind is one of bodies, of positional relations between bodies, and of reciprocal effects of bodies by contact and reaction--just as with Democritus’s atoms. It is juristic statics.[85]