in all regulations which concerned dealings with property,
and consequently in reference to ownership and contracts,
the international law was the standard; in these matters
indeed various important arrangements were borrowed
even from local provincial law, such as the legislation
as to usury,(107) and the institution of -hypotheca-.
Through whom, when, and how this comprehensive innovation
came into existence, whether at once or gradually,
whether through one or several authors, are questions
to which we cannot furnish a satisfactory answer.
We know only that this reform, as was natural, proceeded
in the first instance from the urban court; that it
first took formal shape in the instructions annually
issued by the -praetor urbanus-, when entering on
office, for the guidance of the parties in reference
to the most important maxims of law to be observed
in the judicial year then beginning (-edictum annuum-
or -perpetuum praetoris urbani de iuris dictione-);
and that, although various preparatory steps towards
it may have been taken in earlier times, it certainly
only attained its completion in this epoch. The
new code was theoretic and abstract, inasmuch as the
Roman view of law had therein divested itself of such
of its national peculiarities as it had become aware
of; but it was at the same time practical and positive,
inasmuch as it by no means faded away into the dim
twilight of general equity or even into the pure nothingness
of the so-called law of nature, but was applied by
definite functionaries for definite concrete cases
according to fixed rules, and was not merely capable
of, but had already essentially received, a legal
embodiment in the urban edict. This code moreover
corresponded in matter to the wants of the time, in
so far as it furnished the more convenient forms required
by the increase of intercourse for legal procedure,
for acquisition of property, and for conclusion of
contracts. Lastly, it had already in the main
become subsidiary law throughout the compass of the
Roman empire, inasmuch as— while the manifold
local statutes were retained for those legal relations
which were not directly commercial, as well as for
local transactions between members of the same legal
district—dealings relating to property
between subjects of the empire belonging to different
legal districts were regulated throughout after the
model of the urban edict, though not applicable de
jure to these cases, both in Italy and in the provinces.
The law of the urban edict had thus essentially the
same position in that age which the Roman law has
occupied in our political development; this also is,
so far as such opposites can be combined, at once
abstract and positive; this also recommended itself
by its (compared with the earlier legal code) flexible
forms of intercourse, and took its place by the side
of the local statutes as universal subsidiary law.
But the Roman legal development had an essential
advantage over ours in this, that the denationalized
legislation appeared not, as with us, prematurely
and by artificial birth, but at the right time and
agreeably to nature.