But the despotic trappings of Rome and Byzantium do not appear in the Institutes and are scarce in the Digest. It is true that there is more in the Code. But in later times, from the th century until the present day the almost exclusive attention in legal education has been on the private law in these works. Rudolf Sohm: Alfred and Edward to the manes of Theodosius and Justinian: we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate. APPENDIX I I (See Note ) Concept and System of Law. The individual lives through the fulfilment of the moral law, the people (Volk) through the fulfilment of the legal law. Law is the law of life of the people. Out of the simple mass it makes a body that is competent for defense, commerce, and efficiency. It does not come from the intellect of individuals, but from the instinctive convictions, according to sentiment, expressing the striving for self-preservation of the joined multitude of the people (Volksmässig). The order that the people (Volk) needs is the order of strength: order of the power of command, order of property. Law (in the objective sense) is the necessary ordering of force that is necessary on account of the people (Volk). From that comes the compulsion of law: the whole force of the people (Volk) instituted as punishing, compelling for the ordering of law, in order to defend the proper existence of the people (Volk), in the rules of law. Hence comes the self-evident moral, compelling power of the legal order (this distinguishes the legal order from the common ordering of associations, especially from all others that are not necessary for the people (nicht volksnotwendigen)). The necessities for the life of the people (des Volkslebens) are moral, compulsory necessities for the individual (except when in an individual case, a higher moral command is in contradiction). From this comes also the necessity of a determined content of law: the moral duty of obedience to the legal order contains the demand for a just
RkJQdWJsaXNoZXIy MjYyNDk=