第16章

Now, just as the oldest Greek theorists supposed that thesports of chance had changed the material universe from itssimple primitive form into its present heterogeneous condition,so their intellectual descendants imagined that but for untowardaccident the human race would have conformed itself to simplerrules of conduct and a less tempestuous life. To live accordingto nature came to be considered as the end for which man wascreated, and which the best men were bound to compass. To liveaccording to nature was to rise above the disorderly habits andgross indulgences of the vulgar to higher laws of action whichnothing but self-denial and self-command would enable theaspirant to observe. It is notorious that this proposition --live according to nature -- was the sum of the tenets of thefamous Stoic philosophy. Now on the subjugation of Greece thatphilosophy made instantaneous progress in Roman society. Itpossessed natural fascinations for the powerful class who, intheory at least, adhered to the simple habits of the ancientItalian race, and disdained to surrender themselves to theinnovations of foreign fashions. Such persons began immediatelyto affect the Stoic precepts of life according to nature -- anaffectation all the more grateful, and, I may add, all the morenoble, from its contrast with the unbounded profligacy which wasbeing diffused through the imperial city by the pillage of theworld and by the example of its most luxurious races. In thefront of the disciples of the new Greek school, we might be sure,even if we did not know it historically, that the Roman lawyersfigured. We have abundant proof that, there being substantiallybut two professions in the Roman republic, the military men weregenerally identified with the party of movement, but the lawyerswere universally at the head of the party of resistance.

The alliance of the lawyers with the Stoic philosopherslasted through many centuries. Some of the earliest names in theseries of renowned jurisconsults are associated with Stoicism,and ultimately we have the golden age of Roman jurisprudencefixed by general consent at the era of the Antonine Caesars, themost famous disciples to whom that philosophy has given a rule oflife. The long diffusion of these doctrines among the members ofa particular profession was sure to affect the art which theypractised and influenced. Several positions which we find in theremains of the Roman jurisconsults are scarcely intelligible,unless we use the Stoic tenets as our key; but at the same timeit is a serious, though a very common, error to measure theinfluence of Stoicism on Roman law by counting up the number oflegal rules which can be confidently affiliated on Stoicaldogmas. It has often been observed that the strength of Stoicismresided not in its canons of conduct, which were often repulsiveor ridiculous, but in the great though vague principle which itinculcated of resistance to passion. Just in the same way theinfluence on jurisprudence of the Greek theories, which had theirmost distinct expression in Stoicism, consisted not in the numberof specific positions which they contributed to Roman law, but inthe single fundamental assumption which they lent to it. Afternature had become a household word in the mouths of the Romans,the belief gradually prevailed among the Roman lawyers that theold Jus Gentium was in fact the lost code of Nature, and that thePraetor in framing an Edictal jurisprudence on the principles ofthe Jus Gentium was gradually restoring a type from which law hadonly departed to deteriorate. The inference from this belief wasimmediate, that it was the Praetor's duty to supersede the CivilLaw as much as possible by the Edict, to revive as far as mightbe the institutions by which Nature had governed man in theprimitive state. Of course, there were many impediments to theamelioration of law by this agency. There may have beenprejudices to overcome even in the legal profession itself, andRoman habits were far too tenacious to give way at once to merephilosophical theory. The indirect methods by which the Edictcombated certain technical anomalies, show the caution which itsauthors were compelled to observe, and down to the very days ofJustinian there was some part of the old law which hadobstinately resisted its influence. But, on the whole, theprogress of the Romans in legal improvement was astonishinglyrapid as soon as stimulus was applied to it by the theory ofNatural Law. The ideas of simplification and generalisation hadalways been associated with the conception of Nature; simplicity,symmetry, and intelligibility came therefore to be regarded asthe characteristics of a good legal system, and the taste forinvolved language, multiplied ceremonials, and uselessdifficulties disappeared altogether. The strong will, and unusualopportunities of Justinian were needed to bring the Roman law toits existing shape, but the ground plan of the system had beensketched long before the imperial reforms were effected.