The Spirit of the Roman Law. relation could no longer be maintained and the objective power in the State was therefore grasped and absolutely maintained by one per son. The emperor appears as the incorporated popular will. He is a despot, but not like the despot of the Orient, for he is the bearer of the pofestas and maiatas populi, and he has to see to the maintenance of the rights of all. With the introduction of Christianity a new principle was given to the imperial power: that of the divine right of kings. With this the antique Roman life is discontinued, the old principle of freedom and equality in the empire, and also in the law, disappears, the despotic Byzantine differentiation into castes is introduced, and the whole Roman system approaches its end.
In the Germanic laws, liberty appears as the subjective freedom of the individual; it is his own act; every one has as much liberty as he can obtain and keep for himself. There is no objective, abstract and equal standard of measure for the liberty and right of the individual; there is no objective unity of the state, as in the Roman law, by which the rights of all are determined and preserved. The objective law lives only in the conscious ness and testimony of social associates and is protected by them. Individuals group themselves according to their peculiar con ditions in life, either according to the social scale of feudal and peasant rights, or by cor porations into communities and guilds. The state is only the aggregate of these subjec tive formations and unions. Accordingly every rank has or creates its own laws by decision or custom. The general abstract law has only a small sphere for its action. General enactments concerning the law do not exist, neither do general courts; every sphere of life has its own law and also its own proper court. The organic elements of the social life, estates, communes, corpora tions, the incidents of landholding, the sepa ration of religion and state were carried to a degree of development of which no trace is to be found in the law of Rome. On the other hand, the objective unity of the state and the universal liberty and general privi
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leges of the individual, rights which must form the basis of particular privileges, were entirely lost in this subjective creation. The one-sidedness of the feudal and corporate state at length, towards the close of the mid dle ages, appeared in a perfectly untenable manner and led to a reaction in the direction of the Roman objective state unity. A fu sion of the objective Roman legal and state principle with the subjective Germanic idea, was necessary for an organic formation of the legal life and the development of the state. This fusion connects the middle ages with the modern world. In different coun tries the transition took place in different manners. In France the objective element was adopted by the kings and carried through by force and cunning; the republic and em pire then completed this Romano-French ab solutism and centralization. In Germany the subjective elements of the particular peoples and states retained their preponderance; the legal unity was effected by the reception of the Roman law, but the universality of the empire was destroyed and the principle of the modern state was developed in the varie gated and unsatisfactory form of the small states. All these individual formations se cured the independence of the members, but the unity of the nation was not entirely lost in the popular consciousness, and has in the new German empire received its modern form, assuring not only the right and power of the unity, but also protecting the inde pendent existence of the various countries and peoples composing it. The importance of the Roman law rests mainly on the fact that in it has been devel oped the abstract conception of subjective right; in other words, the universal equality of the rights of the individual in the sphere of private law. In this is contained what is called the universal character of the Roman law. This is not to be construed in saying that the Roman law is the eternal, absolute law for all peoples and all times, or even that a modern nation may need no other law, but
