Ancient Law Chapter 9

lly struck in the Provincial Letters of Pascal， and since the appearance of those memorable Papers， no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical science was thus left at the exclusive command of the writers who followed Grotius； and it still exhibits in an extraordinary degree the traces of that entanglement with Roman law which is sometimes imputed as a fault， and sometimes the highest of its recommendations， to the Grotian theory Many inquirers since Grotius's day have modified his principles， and many， of course， since the rise of the Critical Philosophy， have quite deserted them； but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement， of his train of thought， and of his mode of illustration； and these have little meaning and no point to the person ignorant of Roman jurisprudence."

　　I have already said that， with the exception of the physical sciences， there is no walk of knowledge which has been so slightly affected by Roman law as Metaphysics. The reason is that discussion on metaphysical subjects has always been conducted in Greek， first in pure Greek， and afterwards in a dialect of Latin expressly constructed to give expression to Greek conceptions. The modern languages have only been fitted to metaphysical inquiries by adopting this Latin dialect， or by imitating the process which was originally followed in its formation. The source of the phraseology which has been always employed for metaphysical discussion in modern times was the Latin translations of Aristotle， in which， whether derived or not from Arabic versions， the plan of the translator was not to seek for analogous expressions in any part of Latin literature， but to construct anew from Latin roots a set of phrases equal to the expression of Greek philosophical ideas. Over such a process the terminology of Roman law can have exercised little influence； at most， a few Latin law terms in a transmuted shape have made their way into metaphysical language. At the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in Western Europe， the thought， if not the language， betrays a legal parentage. Few things in the history of speculation are more impressive than the fact that no Greek-speaking people has ever felt itself seriously perplexed by the great question of Free-will and Necessity： I do not pretend to offer any summary

explanation of this， but it does not seem an irrelevant suggestion that neither the Greeks， nor any society speaking and thinking in their language， ever showed the smallest capacity for producing a philosophy of law. Legal science is a Roman creation， and the problem of Free-will arises when we contemplate a metaphysical conception under a legal aspect. How came it to be a question whether invariable sequence was identical with necessary connection？ I can only say that the tendency of Roman law， which became stronger as it advanced， was to look upon legal consequences as united to legal causes by an inexorable necessity， a tendency most markedly exemplified in the definition of Obligation which I have repeatedly cited， "Juris vinculum quo necessitate adstringimur alicujus solvendae rei."

　　But the problem of Free-will was theological before it became philosophical， and， if its terms have been affected by jurisprudence， it will be because Jurisprudence had made itself felt in Theology. The great point of inquiry which is here suggested has never been satisfactorily elucidated. What has to be determined， is whether jurisprudence has ever served as the medium through which theological principles have been viewed； whether， by supplying a peculiar language， a peculiar mode of reasoning， and a peculiar solution of many of the problems of life， it has ever opened new channels in which theological speculation could flow out and expand itself. For the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. It is conceded on all sides that the earliest language of the Christian Church was Greek， and that the problems to which it first addressed itself were those for which Greek philosophy in its later forms had prepared the way. Greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the Divine Persons， the Divine Substance， and the Divine Natures. The Latin language and the meagre Latin philosophy were quite unequal to the undertaking， and accordingly the Western or Latin-speaking provinces of the Empire adopted the conclusions of the East without disputing or reviewing them. "Latin Christianity，" says Dean Milman， "accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. Yet， throughout， the adhesion of Rome and the West was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the Eastern divines， rather than a vigorous and original examination on her part of those mysteries. The Latin Church was the scholar as well as the loyal partizan of Athanasius." But when the separation of East and West became wider， and the Latin-speaking Western Empire began to live with an intellectual life of its own， its deference to the East was all at once exchanged for the agitation of a number of questions entirely foreign to Eastern speculation. "While Greek theology （Milman， Latin Christianity， Preface， 5） went on defining with still more exquisite subtlety the Godhead and the nature of Christ" —— "while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community" —— the Western Church threw itself with passionate ardour into a new order of disputes， the same which from those days to this have never lost their interest for any family of mankind at any time included in the Latin communion. The nature of Sin and its transmission by inheritance —— the debt owed by man and its vicarious satisfaction —— the necessity and sufficiency of the Atonement —— above all the apparent antagonism between Free-will and the Divine Providence —— these were the points which the West began to debate as ardently as ever the East had discussed the articles of its more special creed. Why i

s it then that on the two sides of the line which divides the Greek-speaking from the Latin-speaking provinces there lie two classes of theological problems so strikingly different from one another？ The historians of the Church have come close upon the solution when they remark that the new problems were more "practical，" less absolutely speculative， than those which had torn Eastern Christianity asunder， but none of them， so far as I am aware， has quite reached it. I affirm without hesitation that the difference between the two theological systems is accounted for by the fact that， in passing from the East to the West， theological speculation had passed from a climate of Greek metaphysics to a climate of Roman law. For some centuries before these controversies rose into overwhelming importance， all the intellectual activity of the Western Romans had been expended on jurisprudence exclusively. They had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. No foreign pursuit or taste called off their attention from this engrossing occupation， and for carrying it on they possessed a vocabulary as accurate as it was copious， a strict method of reasoning， a stock of general propositions on conduct more or less verified by experience， and a rigid moral philosophy. It was impossible that they should not select from the questions indicated by the Christian records those which had some affinity with the order of speculations to which they were accustomed， and that their manner of dealing with them should borrow something from their forensic habits. Almost everybody who has knowledge enough of Roman law to appreciate the Roman penal system， the Roman theory of the obligations established by Contract or Delict， the Roman view of Debts and of the modes of incurring， extinguishing， and transmitting them， the Roman notion of the continuance of individual existence by Universal Succession， may be trusted to say whence arose the frame of mind to which the problems of Western theology proved so congenial， whence came the phraseology in which these problems were stated， and whence the description of reasoning employed in their solution. It must only be recollected that Roman law which had worked itself into Western thought was neither the archaic system of the ancient city， nor the pruned and curtailed jurisprudence of the Byzantine Emperors； still less， of course， was it the mass of rules， nearly buried in a parasitical overgrowth of modern speculative doctrine， which passes by the name of Modern Civil Law. I speak only of that philosophy of jurisprudence， wrought out by the great juridical thinkers of the Antonine age， which may. still be partially reproduced from the Pandects of Justinian， a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance， certainty， and precision， than human affairs will permit to the limits within which human laws seek to confine them.

　　It is a singular result of that ignorance of Roman law which Englishmen readily confess， and of which they are sometimes not ashamed to boast， that many English writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect durin

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