Vet we know that the lesson of history is nuieh against Montesquieu. Again he writes: I low can one apph a law it one does nor know the coiintrx’ tor which it was made, the circumstances in which it was made?'" But again we know that such law can he, and is, applied, h'or Sav ignv we ha\ e: \\ liere we first find documented history, tlie ci\ il law has already a determinate character, peculiar to the people, just as have their language, manners, constitution. Indeed, these phenomenon ha\e no separate e.xistence, they are only the particular powers and functions of an individual people, inseparably joined in nature, and appearing as particular characteristics only to our ohser\arion.’' .\nd again: If we ask further for the subject in which and for which positi\e law has its existence, we tmd this is the people. Positi\ e law lives in the common consciousness ot the people, and therefore we ha\ e also at call it the law of the people (Volksrecht). But this should not be so understood as if it were the indi\ idual members of the people through whose arbitrar\' will the law is brought forth. , . .Rather it is the spirit of the people (\olksgeist), li\ ing and working in all the individuals together, w hich creates the positive law, which is therefore, not bv accident but necessariK, one and the same law to the consciousness of each indi\ idual. 1 cannot retrain troiu quoting the e.xceptionalh' .strong statement of m\’ fellow countrx inan. Lord C^ooper of Cudross: "'The truth is that law is the reflection of the spirit of a people, and so long as the Scots are conscious that they are a people, they must preserx e their law."’* For him, a people without its r)wn distincti\ e law is not a people, f'or 20 This quotation is from his materials for De iEsprit des Lois, extraits de Mes Pensées, to be found in the Pléiade edition of his Oeuvres Complétes 2 (Paris, 1951), p. 1076. 21 Vom Beruf unsrer Zeit fur Gesetzgebung and Rechtsi/vissenschaft (He\de\berg, 1814), p. 8. 22 Systemdes heutigen römischen Recht, 1 (Berlin, 1840), p. 14. 23 'The Scottish Legal Tradition' in Selected Papers (Edinburgh, 1957), p. 199. 97
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