LA\V, LEGISLATION, CODES. 



395 



that invisible power, that silent judgment of the 

 people, which tends to correct the mistakes of arbi- 

 trary legislation, and to defend the people from the 

 law, ana the lawgiver from himself. Frequent ex- 

 periments have shown that laws, at variance with 

 the manners and religious views of a people, cannot 

 be forced upon them, however well meant, and how- 

 ever beneficial may have been their influence upon 

 other nations ; and that, by means of laws, a legis- 

 lator, can no more elevate his countrymen to a higher 

 degree of refinement, without passing through the 

 intervening steps, than lie can reduce them again to 

 a condition above which they have risen in the natural 

 course of events. Hence Frederic II. of Prussia was 

 more happy in his reforms than Joseph II. For it 

 was by no means the intention of the Prussian legis- 

 lator to give his subjects a new system of law, but 

 rather to sanction that which they already possessed; 

 to adapt the letter of the ancient laws to the notions 

 of right which had gained a footing in the spirit of 

 the nation, and, above all, to remove all those un- 

 certainties which had necessarily sprung from the 

 use of a foreign code, which had checked improve- 

 ment in practice. Indeed, it is not the duty of a 

 skilful legislator to create new laws ; but only to 

 develope those which existed prior to any express 

 recognition, and to introduce, with prudence, those 

 positive rules which cannot be deduced from general 

 principles, as the determination of the length of 

 minority, the period of superannuation, the amount 

 of punishments, &c. ; in which the principles of 

 natural right are reduced to a practical application. 

 To the province of the practical legislator belong 

 also those forms which are required in the application 

 of legal principles ; as the formalities of contracts 

 and of judicial processes, and the rules of evidence, 

 in all which it should be kept in mind that these 

 positive institutions do not, of themselves, constitute 

 law, but are the mere mechanism to facilitate the use 

 of it. They should be viewed only as the means of 

 promoting a higher end. The view of the original 

 ground of laws is a point on which not only the 

 schools of European jurists differ, but on which the 

 most important principles of public law come into 

 collision. 



2. The schools of modern jurisconsults may be re- 

 duced, in reference to their principal characteristics, 

 to four, although these are variously modified, and, 

 in many respects, run into one another. In the 

 last century, with few exceptions, the practical school 

 predominated, which, on the one hand, esteemed the 

 authority of courts and individual jurists higher than 

 the law, and, on the other, was influenced, in an im- 

 portant degree, by philosophy, particularly tliat of 

 Leibnitz and Wolf. Arguments were, for the most 

 part, drawn with great logical precision, from the 

 nature of the case. The members of this school felt 

 themselves justified in departing from the letter of the 

 written law, either whenever it seemed not adapted 

 to the existing case, or reference could be made to 

 the decisions of courts on the same point. By this 

 school were introduced a multitude of new opinions, 

 supposed equities, and milder punishments; and their 

 fundamental views were not altogether erroneous. 

 They proceeded on the true notion, that the laws of 

 a people are the result of its own peculiar character, 

 and must take their hue from this. They tried to 

 help the letter of the old laws, by deductions from the 

 nature of things, and, by adhering to precedents, to 

 attain to that harmony in the administration of jus- 

 tice, which alone can secure the public confidence. 

 The influence exerted by this school on the legisla- 

 tion of the eighteenth century was very great, par- 

 ticularly through Nettelbladt and Daries ; and the 

 code of Prussia, in particular, may be considered as 



its work. But it wanted a proper system of judicial 

 tribunals, to prevent that fluctuation in practice, in 

 consequence of which all certainty, in regard to law, 

 was lost, so that the result of the decision of the 

 simplest cause could hardly be conjectured before- 

 hand. The practical school was divided again into 

 two parties, which agreed only in this, that the juris- 

 consults, or the judges, might look beyond positive 

 law ; but were opposed to each other in so far that 

 one party recognised nothing but the authority of 

 some favourite casuist, and the usage of courts ; the 

 other regarded natural right, and what they called 

 reasonableness, as the basis of all their decisions. 

 The former almost always carried the day ; for it 

 often happened that the latter opposed them only till 

 they had become familiar with the routine of prac- 

 tice, and felt themselves at home in it. In the last ten 

 years of the eighteenth century, new views suggested 

 themselves to the philosophical jurists. A more per- 

 fect and living philosophy had examined afresh the 

 foundations of science. Many a fabric was shat- 

 tered, which had preserved the appearance of 

 soundness only in consequence of negligence. At 

 the same time, society took a new turn, and every 

 thing seemed aiming at an ideal perfection. All 

 former obstructions in the way of legal reform ap- 

 peared to be set aside. France became a republican 

 state, and the doctrines of natural right were intro- 

 duced into practice. But things have changed again, 

 so that philosophical law has made but little advance, 

 and has gained but little influence in courts of jus- 

 tice. Philosophical treatises, however, have appeared 

 on some departments ; as on criminal law, on civil 

 process, and particularly on public and ecclesiastical 

 law. But such works can have no real value with- 

 out a profound and accurate treatment of positive 

 law, and have, therefore, produced but little effect. 

 The difference of opinion, in the two parties above- 

 mentioned, has been of practical importance only on 

 one occasion, viz. when it was proposed to prepare 

 new bodies of law for Germany, or to take from the 

 French legislation (which deserves so much respect 

 in regard to public law), the rules of civil and penal 

 law, and the forms of procedure. This plan presup- 

 posed that a code might be formed on purely philoso- 

 phical principles, which, being adapted to mankind 

 in general, would suit all nations and all times, and 

 become the basis and essence of every other. Cor- 

 rections might be made in this ground-work by de- 

 grees, as the development of the science of law 

 pointed out deviations from the requisitions of natural 

 justice ; and the peculiarities of the legislation of 

 each people might be added. For even those who 

 believed that all positive legislation was based on 

 a foundation so unalterable and eternal, could not 

 help seeing that the additions to be made, for the 

 purposes of practical application, must be drawn from 

 empirical premises, which were neither suited to all 

 people, nor constant to any given people ; so that 

 such a code, drawn from natural law, must still leave 

 a wide field for positive legislation. This view was 

 taken, particularly in considering the value of the 

 French codes, the adoption of which, in Germany, 

 had been recommended. It was inquired whether 

 the civil code of Napoleon had solved the great pro- 

 blem how to establish a code based on natural jus- 

 tice, and capable of so universal application as to be 

 equally adapted to people living on the Vistula and 

 the Seine, on the Elbe, and Po, and Tiber. It was 

 soon perceived that the Code Napoleon did not reach 

 this ideal. On this occasion, the contest between the 

 philosophical and historical jurisprudence came up, 

 which was afterwards particularly revived by Sa- 

 vigny's Vomi Bentf unserer Zeit zur Gesetzgibung, 

 1815, (the Call for Codification in our Times.) Tho 



