The law-history of the West begins in total independence of Justinian’s creation. At that time it was in complete oblivion, so thoroughly unimportant, in fact, that of its main element, the Pandects (Digest), there was but one manuscript, which by accident (an unfortunate one) was discovered about 1050.

The pre-Cultural phase, from about A.D. 500, had thrown up a series of Germanic tribal codes--the Visigothic, Ostrogothic, Burgundian, Frankish, and Lombard--which correspond to those of the Arabian pre-Culture that survives for us only in the Jewish[111] Deuteronomy (_c._ 621, more or less our Deuteronomy xii-xxvi) and Priestly History (_c._ 450, now represented by the second, third, and fourth books of the Pentateuch). Both are concerned with the values of basic significance for a primitive existence--family and chattels--and both make use, crudely, yet shrewdly, of an old and civilized law--the Jews (and no doubt the Persians and others) working upon the late Babylonian,[112] and the Germans upon some few relics of Urbs Roma.

The political life of the Gothic springtime, with its peasant, feudal, and simple burgher laws, leads very soon to particular development in three great branches of law which have remained distinct to this day--and there has been no unifying comparative history of law in the West to probe the deep meaning of this development.

The most important by far, owing to the political destinies in which it was involved, was the Norman law, which was borrowed from the Frankish. After the Conquest of England in 1066, this drove out the native Saxon, and since that day in England “the law of the great men has become the law of the whole people.” Its purely German spirit has developed it, without a catastrophe, from a feudal régime of unparalleled stringency into the institutions of the present day which have become law in Canada, India, Australia, South Africa, and the United States. Even apart from the extent of its power, it is the most instructive in West Europe. Its development, unlike that of the rest, did _not_ lie in the hands of theoretical jurists. The study of Roman law at Oxford was not allowed to touch practice; and at Merton in 1236 the higher nobility expressly rejected it. The Bench itself continued to develop the old law-material by means of creative precedents, and it was these practical decisions (“Reports”) that formed the basis of law-books such as that of Bracton.[113] Since then, and to this day, a statute law, kept living and progressive by the court decisions, and a common law, which always vividly underlies the legislation, exist side by side, without its ever becoming necessary for the representatives of the people to make single large efforts at codification.

In the South, the law of the German-Roman codices above mentioned prevailed--in southern France the Visigothic (called the _droit écrit_ in contrast to the Frankish _droit coutumier_ of the north), and in Italy the Lombard (which was the most important of them, was almost purely Germanic, and held its own till well into the Renaissance). Pavia became a study-centre for German law and produced about 1070 the “_Expositio_,” by far the greatest achievement of juridical science in the age, and immediately after it a code, the “_Lombarda_.”[114] The legal evolution of the entire South was broken off by Napoleon’s _Code Civil_, which took its place. But this in turn has become in all Latin lands and far beyond them the basis for further creative work--and hence, after the English, it is the most important.

In Germany, the movement that set in so powerfully with the Gothic tribal laws (_Sachsenspiegel_, 1230; _Schwabenspiegel_, 1274) frittered itself away to nullity. A host of petty civic and territorial rights went on springing up until indignation with the facts induced an unreal political romanticism in dreamers and enthusiasts, the Emperor Maximilian among them, and law came under attack with the rest. The Diet of Worms in 1495 framed its “_Kammergerichtsordnung_”[115] after an Italian model. Now there was not only the “Holy Roman Empire” on German ground, but “Roman law” as German common-law. The old German procedures were exchanged for Italian. The judges had to study their law beyond the Alps, and obtained their experience not from the ambient life, but from a logic-chopping philology. In this country alone are to be found, later, the ideologues for whom the _Corpus Juris_ is an ark to be defended against the profanation of realities.

What, in fact, was it that under the high-sounding name passed into the intellectual keeping of a handful of Gothic men? About 1100, at the University of Bologna, a German, Irnerius, had made that unique manuscript of the Pandects the object of a veritable Scholasticism. He transferred the Lombard method to the new text, “the truth of which, as a _ratio scripta_, was believed in as implicitly as the Bible and Aristotle.”[116] Truth!--but the Gothic understanding, tied to the Gothic life-content, was incapable even of distantly guessing at the spirit of these texts, for the principles fixed in them were the principles of a civilized and megalopolitan life. This school of the glossators, like Scholasticism in general, stood under the spell of concept-realism; as they held the genuine real, the substance of the world, to be not in things, but in universal concepts, so they maintained that the law was to be found not in custom and usage as displayed in the despised[117] _Lombarda_, but in the manipulation of abstract notions. Their interest in the book was purely dialectical[118]--never was it in their minds to apply their work to life. It was only after 1300, and then slowly, that their anti-Lombard glosses and summæ made their way into the cities of the Renaissance. The jurists of the Late Gothic, above all Bartolus, had fused canon and Germanic law into one whole with a definitely practical intention, and into it they brought ideas of actuality--here, as in Dracon’s code and the Imperial Edicts from Theodosius to Justinian, the actuality of a Culture that is on the threshold of its “Late” stage. It was _the creation of Bartolus that became effective_ in Spain and Germany as “Roman law”; only in France did the jurists of the Baroque, after Cujacius and Donellus, get back from the Scholastic to the Byzantine text.

But Bologna witnessed, besides Irnerius’s achievement in abstraction, an event of quite other and decisive import--the famous Decretum of Gratian, written about 1140.[119] This created the Western _science of spiritual law_. For by bringing the old-Catholic, Magian, church-law,[120] founded in the Early-Arabian sacrament of baptism,[121] into a system, it provided the very form that the new-Catholic, Faustian Christianity needed for the jural expression of its own being, which reached back to the prime sacrament of an altar and a consecrated priesthood. With the _Liber extra_ of 1234 the main body of the _Corpus Juris Canonici_ is complete. What the Empire had failed to accomplish--the creation, out of the immense undeveloped profusion of tribal laws, of a general Western “_Corpus Juris Germanici_”--the Papacy achieved. There came into existence a complete private law, with sanctions and processes, produced with German method out of the ecclesiastical and secular law-material of the Gothic. This is the law called “Roman” which presently, after Bartolus, was infused into all study of the texts of Justinian themselves. And it shows us, in the domain of jurisprudence as elsewhere, that great dissidence, inherent in the Faustian, which produced the gigantic conflict between the Papacy and the Empire. The destruction between _fas_ and _jus_, impossible in the Arabian world, was inevitable in the Western. They are two expressions of a will-to-power over the infinite, but the will behind “temporal” legislation is rooted in custom and lays hands on the generations of the future, while that of “spiritual” originates in mystical certainty and pronounces a timeless and eternal law.[122] This battle between equally matched opponents has never yet been ended, and it is visible even to-day in our law of marriage, with its opposition of the ecclesiastical and the civil wedding.

With the dawn of the Baroque, life, having by that time assumed urban and money-economic forms, begins to demand a law like that of the Classical city-states after Solon. The purpose of the prevailing law was now perfectly clear. But it was a fateful legacy from the Gothic that the creation of “the law inborn in us” was looked upon as the privilege of a learned class, and this privilege no one succeeded in shaking.

Urban rationalism turned, as in the case of the Sophists and the Stoics, to busy itself with the “law of nature,” from its foundation by Oldendorp and Bodinus to its destruction by Hegel. In England the great Coke successfully defended Germanic self-developing practical law against the last attempts of the Tudors to introduce Pandect law. But on the Continent the systems of the learned evolved in _Roman_ forms right down to the state codes of Germany and the schemes of the _Ancien Régime_ in France on which the Code Napoléon was based. And therefore Blackstone’s _Commentaries on the Laws of England_ (1765) is the one purely Germanic Code, and it appeared when the Faustian Culture had already reached the threshold of its Civilization.