NARRATOR: This is a production of Cornell University.
ROBERT SUMMERS: It's a very great pleasure to present to you Professor Dr. Okko Behrends of the University of Gottingen in Germany. He is one of the great scholars of the Roman law today, perhaps the greatest in Europe. And it is indeed a privilege of this university to have him with us as an Andrew Dickson White Professor at Large at Cornell University, a very high honor bestowed upon only those who are so worthy of such high honor. Professor Behrends, it's a great pleasure to have my students be with you and for me to be with you.
OKKO BEHRENDS: Thank you. Thank you.
OKKO BEHRENDS: Oh, I'm very grateful for these very kind words and for this kind reception and of course, I must say also for this longstanding and very inspiring friendship I have with Professor Summers. I told you that my life would have been much poorer without this acquaintanceship. And we have a common interest in the form of the law, what is the form of the law. In my current speech, "The Spirit of the Roman Law," has an affinity to this question because if you are in a good form, then you have the right spirit. And if a law has the right spirit, then the form of the law is excellent.
And I dare say that the Roman law has a good form, but the common law I will mention at the end has a good form, too. So I will start my lecture, relying on my text and on my very German English. You must be careful to understand me, otherwise you will misunderstand my bad pronunciation. Treating the spirit of the Roman law today confronts us with two different questions. The first is historical and will constitute our main theme, what makes up its spirit, explaining its enormous success in ancient and modern times?
The next confronts us with another fact that has to be dealt with at first, Roman law has lost in the judgment of many jurists its role as the vivifying fountain and true source of European legal culture as the great provider of legal notions, or to put it succinctly as the creator of the universal grammar of law and politics and a treasure house for intellectual experience that nobody can visit with without feeling enriched and stimulated in her or his own actual judgment. How can the devaluation of one of the greatest spiritual assets in the heritage of humankind be understood, especially today where we are looking for intellectual help in front of the partially problematic tendencies of our time, those that carry with them the risk that the central scope of law-- to enable, secure, and free individual and fruitful life and secure and sustain private forms is sacrificed to the unmitigated tyranny of global economic efficiency?
I will limit myself to a brief answer. Roman law, although still taught all over the world, has lost its intellectual prestige as a central contribution to the world's culture not because of the work of jealous outsiders-- there are some today, but they cannot be regarded as serious-- but because of what I would like to call a historical betrayal of its spirit by the Romanists, that is the professors of Roman law themselves. This betrayal was perpetrated by a misinterpretation that had tied the Roman law to the spirit of a certain historical period, to a bygone period in which the idea of the closed national state and its potential imperial yearning dominated the intellectual scene, thereby destroying the very idea of continuity of the human condition on which the tradition of Roman law and of law in general is based.
The Roman law was then still in immediate vigor as civil law, you know it. It was then adapted to the demands of the modern self-sufficient sovereign, admittedly revolutionary, nationalist state that defined itself as the unique source of law, making thereby law subservient to every purpose defined by the political power. Law was in the last resort conceived of as a form that sanctions power-based relationships provided they were established in a way compatible with the rules accepted by the raison d'etre. The method applied for this adjustment was an adapting interpretation.
It was declared that Roman law was like modern law based on decisions that gave sanctions to accepted relationships of power, such as was emanated not only from the institutional organs of the state but in the Roman case even in the first line from the lawyers who were defiant when deciding how a conflict between individual assertions had to be decided as the embodiment of the people's will. With the help of this interpretation, Roman law was made compatible with the fundamental idea of the modern state that law is and has to be always the emanation of the will of the state, representing the interest of the individual people and its members in the concrete historical situation in the cases and problematic situations that arise and can therefore essentially be reduced in the last resort to nothing else than commands requiring obedience.
This is the modern command or real theory of law. This approach that has complex roots in the history of modern mind destroyed the fundamental ideas of spiritual objectivity and with it the possibility of ideas creating and sustaining an objective order lasting in time, a possibility that creates tradition and thereby something on which all successful constitutions are based. Hannah Arendt, you know her, has shown in some very striking essays-- writing in relation to your law and the Roman examples, she has shown the importance that the founding ideas have for a constitutional order as the fundamental layers that persist and from which renewal that adjusts to changing circumstances is always possible. Studying the Roman case, she realized in this respect the central importance of the concept of authority, that of auctoritas, authority.
It is in effect a highly specific Roman term with roots going back to the very beginning. The Greeks declared the word authority, auctoritas, to be untranslatable. But all the modern languages have successfully adopted it as a verb that connotes a power not based on false and arbitrary an discretion, but on something that compares obedience because it represents and affirms the objective value of an order traditionally accepted and approved by reason. The Romans, it's to whom we owe the notion of authority, will tell us that their auctoritas was, in fact, derived from the experience of their successful founding. It was not rooted in subjective will nor in any military power, but in the representation of an order [? presented ?] as fundamental and good by a longstanding experience.
The misinterpretation that reduced the source of Roman law to decision-making still prevails and is the main reason why Roman law is currently absent in the great intellectual debate concerning the fundamental of law and is by no means today used in line with its intellectual potentialities. Roman law is definitely marginalized in the debate of how a globalized world should be organized, and this although it is the only law that has been formed by the experience of giving a common law to what in antiquity was regarded as mankind. The inhabitants of the Mediterranean basin live mainly in city-states of different languages and cultures and traditions.
Behind this negative attitude today, there is a doubtful question that we can understand when we look on the modern development I described that is the final victory of the command theory of law. The doubtful question is what can one learn from decision-making serving the necessities of a time so far away from ours? It is, therefore, quite understandable when leading Italian Romanists like Mario [INAUDIBLE] and Aldo Schiavone are convinced that there is no continuity between modern and ancient law. The latter, Aldo Schiavone, has published a book with the telling title, La Storia Spezzata, which means History Divided and sounds in the English translation published soon afterward still more provocative, The End of the Past.
When the past has ended, then all that remains is the present. The present time is left alone. What happened in the past does no longer help. I disagree because in all fundamental relationships of the law, the human condition has not changed. It is true that there is a continuous movement in the right appraisal of social and individual values that influence events along, but changes brought about by this movement are in the perspective of legal history rather a new unseeing of the maintained social order then a sequence of destruction and rebuilding.
We turn now to antiquity, to the Roman law in its own time, a period that endured more than 1,000 years, far longer than modernity, whether we count it from the discovery of the New World-- your world-- or, as many do today, from the French Revolution. We find in its center a persisting and enduring idea that conceives of law essentially as a system of peaceful social relationships existing between equal human persons in a definite legal form. It was the great author of De l'esprit de Lois, Montesquieu, On the Spirit of Law, who introduced the felicitous term legal relationship, rapport, [FRENCH].
Through seven years, the founder of the historical school of law, it is now everywhere accepted in professional language-- [SPEAKING FOREIGN LANGUAGES], legal relationship. It defines law as life seen under a certain angle, that is of a social system of free members ordered by legally acknowledged and formalized relations. Both authors, Montesquieu and Savigny converged in combining this view of the law with the constitutional idea of the republic, Montesquieu by showing that the republic is the only constitution based on morals and virtue and not the others on fear and [? inhibition, ?] Savigny by declaring that the Romans developed a particular realistic view on the phenomenon of law in the nearly 500 years of their republic.
The concept of legal relation opens up, in fact, to its entire fertility when we compliment it with two pairs of concepts. These concepts I import from Greece. Due to the Hellenistic period that began in the third century before Christ and was characterized by the reception of fundamental constitutional ideas of Greek philosophy into the Roman law, a reception that was enormously enriching and knew several waves but did not break with the founding ideas of Roman law, as you will see in due course. The first pair is public law-private law, publicum jus, jus privato. The second pair is civil law and law of all nations, both key notions for the understanding of the spirit of the Roman law.
The pair private law-public law establishes the fact that Roman law is essentially a Republican order where private law is protected by magistrates chosen by the people and developed by statutes enacted by the people. The connection between private and public law is in the Roman tradition essential. It contains a lesson they learned from their own history that only a republic can protect the freedom of the individual since only in a republic, the personnel in power is chosen and controlled by those interested in the security of their freedom and property.
Where these differences disappear, there is the imminent danger of tyranny and henceforward abolition of freedom since a tyrant thinks themself as a sovereign law of the bodies and fortunes of everyone. This conviction runs very deep in the Roman conscience and is nourished in several episodes of their canonized history, the best known being the one that led to the expulsion of the kings because the last in the [? row ?] of good and law-abiding monarchs revealed himself as a terrible tyrant. From that year onwards, traditionally 510, kingship was identified with tyranny and attempts to reintroduce monarchy was execrated as the gravest possible crime.
Caesar, great Caesar, openly showing his disdain for the republic and aspiring to the diadem of an idealistic king was killed by Brutus and Cassius as a would-be tyrant. Augustus, his son by adoption, learned this lesson and was therefore very careful when nevertheless introducing a monarchy to do it with a carefully elaborated program of the restitution of the republic. The core idea with which Augustus convinced his time and posterity was, in fact the constitutional idea of a res publica restituta, restitution of the republic. It was never abandoned, not even by the autocrats like Constantine, who admitted Christianity as a permitted and listed religion and Justinian, who codified the Roman law.
And Justinian codified the Roman law as a creation due to the inspiring work of the Holy Spirit. Both emperors saw themselves as rulers of a res publica. Therefore, it is not due to mere tradition that the corpus juris, the body of law, enacted by Justinian opens up in his first titles with the pair juris publicum, juris privatum, described as a necessary aspect of every legal order. This is, of course, the maintained tradition of the Roman Republic.
This means, I repeat, that the ideal of the republic, literally the common object or commonwealths, was never abandoned, even when it was well hidden from the public eye by the overwhelming might of an emperor whose study of the qualification seriously was necessary led to the conviction that illegal order was something entrusted to the emperor and not created by will. When in the 12th century, the medieval emperor asked the professor of the University of Bologna whether every riot originates from his imperial will or whether fundamental rights arise from the consent of the people, as in those days assembled in the municipalities of Italy, he got from a courageous colleague the right answer and a good pun to go with it.
For when a more subservient professor affirmed the sovereign right of the emperor and was donated with a horse, he commented it with the words, [SPEAKING LATIN]. Is a very good pun because horse, equis, and right, equis, where pronounced and written in those days in the same way. In this tradition, Savigny, the founder of the historical school I mentioned already, still living in the last days of the medieval empire but like his contemporary Goethe, in the free city of Frankfurt, wrote in his treatise, the system of today's Roman law, he wrote, I quote, a state comes into existence originally and naturally in a people, by a people, and for people it, a formula that will resonate with you because it was taken up some decades later by Lincoln, most powerfully in his solemn wish that government of the people, by the people, and for the people shall not perish from the Earth.
It is the perspective of quintessentially Republican character. In the background, there is always a necessary relationship between res publicum and juris pribatum, that is of a nation organized by a constitution able to organize a public power that presupposes a free society because administered by the representatives of those interested in the maintenance of their legal relations. In the time I have classified as the period of the betrayal of the Roman law, the pair public and private law was disliked. The very idea of private law ran against the then dominant romantic desire of a homogeneous nation that wanted all their members taken and inspired by the same volonte generale, this famous notion Rousseau.
The pair juris publicum-juris privatum suffered in this perspective from the fact that the objective private expressed the concept that the freedom from political and social constraint is something created in the sphere of the individual itself and not, as some modern theory think, granted by the Constitution. In fact, the term privatus made this point. For the eldest Greek legal theory that appeared in Rome at the beginning of the third century, private was something cut out of what before was public and common.
In a mythical golden age, all was publica possessio common perception. With the culture of the city-state came the privata possessio, private possession, that divided the world into city-states and private property and replaced common possession of all goods by natural law by a private system in city-states. The younger Hellenistic theory of skeptical origin was more radical. In their view, all private interests lay rooted in what human beings brought with them been founding a state, seeking for better protection for freedom, possession, and the basic relationships in family life.
For both theories, it is characteristic that the acknowledgment of private law does not require citizenship in the state where protection is required because in both theories, the root is universal. In the first time, the root is in a natural law, which were presupposed in the golden age and the other is based in the nature of every human being. The second pair, civil law and the law of all nations, explains why the protection of private law does not require citizenship.
It explains it, by the way, that in the period when mankind organized in different states, the rights given by private law are essentially derived not from citizenship, but from membership in the human society. This is a common conviction of both Hellenistic theories. Every state on Earth is created by the same universal tendencies valid for all of mankind and serves, therefore, necessarily two purposes. One purpose is the protection of the special rights of the citizens. The other purpose is the obligation to offer a place for every human being that happens to be on the territory of the individual states and the obligation to protect its freedom and its property.
Both theories justify this conviction in a slightly different way. I hinted to this fact already. The elder declared that the spiritual force that urged everywhere humankind to the founding of individual states and thereby breaking up the elder formations of tribes united by the same language, as in old times the Greeks, the Latins, the Phoenicians, that in each single state of different legal orders, but nevertheless states that are created by the same universal and rational urge emerging in this period everywhere. Therefore, legal interpretation can find in the letter of the individual civil law universal principle animating it and [INAUDIBLE] them in a way that can be applied in favor of everyone.
The universal law found out by interpretation was the jus civil, the civil law, that required validity everywhere, the law of civilized mankind. The profound relationship between civil law and universal urban civilization has its origin here. The younger theory discarded the idea of a universal law inherent in all the different legal systems and substituted it with the idea of a set of general institutes that emerge in a way discernible for human reason the moment this threshold of civilization is passed.
These institutes served to protect the biological attributions that permitted life before statehood like freedom, possession, and family relations and were refined by ethical values of natural equity equally discoverable in civilization and sanctioned by the magistrate. Augustus, when realizing his program of restituting the republic preserved both Hellenistic theories sustaining the universal idea of a republic and left it in a decision of exemplary wisdom to scientific developments of both of these traditions, of the elder and the younger, to work out which of the approaches was the sounder one.
Augustus, after having restored the republic, assumed the charge to maintain what he had restored sustained by an extraordinary power that stood above and outside the republic. It was partly military. By assuming the [? heritage ?] of Caesar, he became and remained the commander-in-chief of all armed forces in the empire. But in its constitutional center, it got its legitimacy from the extraordinary power that the name Augustus conveyed, the name formally given to him by the Senate but selected by him with care, and a profound understanding of Roman legal history.
It is an augural [? name, ?] linked with the eldest layer of Roman origin, the religion of the Augurs. It gave the legitimacy and spiritual security to the founding of Rome. It did not confer power to command, but power to interpret and is called in its essence by the central word we know already, authority, auctoritas. The name Augustus and the quality auctoritas are, in fact, two sides of the same coin. Augustus shows the more religious part, auctoritas, the more theoretical part or [INAUDIBLE] of the middle.
The term auctoritas is explained by Augustus himself. Referring to the republic he had restored, Augustus said in the famous inscription initially present in that empire that within this renewed republic, he was a citizen like the others and therefore, when chosen to a charge had no more power than his colleagues but that he excelled by his supreme authority. In Latin, he said, auctoritata omnibus praestiti. That means I excel all others by my authority. This auctoritas, the expression of what the title August meant in the legal context, reveals a form of legitimacy of great refinement.
We can understand it only when we remember that Augustus had great counselors and especially one of outstanding intellectual quality. When Octavian, this was the formal name of Augustus, at the amazingly young age of 19 dared to claim of political succession of his killed adoptive father, Caesar, by levying troops with no other legitimacy than his being this son of Caesar, he had come in close contact to Cicero, in those days, a great elder statesman who incarnated the republic. Tradition affirms that the murderers of Caesar, when brandishing their bloodied daggers, exclaimed his name.
Cicero was, nevertheless, a born mentor for the future of Augustus because he had in his later writings, especially in his book On the Republic, De Republica, and On the Laws, De Legibus, promoted the idea that a republic can be in need of an exceptional and inspired leader. So he prepared the ground for the belief that the appearance of such a supreme personality be possible and he did so with arguments borrowed from Plato.
He hailed in famous speeches the young heir of Caesar as the divine youth who the gods had sent to the rescue of the Roman Republic and endowed with the spiritual potential to do so because gifted with special insight into the rightful order of things that Platonic thinking accords to exceptional historical figures. Augustus had learned his lesson and had acted accordingly, not only restoring the Constitution of the Republic, but organizing the lawyers' professional freedom to develop the law of the Republic in a way that they could do it henceforth in the name of his authority.
It was the attraction of this famous institute of giving advice in the name of the emperor, in the name of the authority of the [INAUDIBLE], but never interfered intellectually. It was only a form, a spiritual form. It was a logical consequence of his extraordinary spiritual authority. He who had restored the Republic and remained the supreme supervising authority was necessarily also the supreme source of all legal development, even of that he had laid trustingly in the professional hands of the lawyers. In this way, he could-- as I said already-- very wisely tolerate the competition of two law schools.
The content of the name Augustus compared with the term auctoritas is still more powerful. Rooted in the eldest most enduring and most successful stratum of Roman religion, it went back to the first still pre-urban settlements. It stressed the idea of the restitution of the Republic, since a republic, a free citizen, can be seen as an enlarged form of an elder settlement, of sentiment of free settlers. And this was the case in Rome, in fact. The name Augustus characterized the person who bore it as someone chosen and blessed by Jupiter, the supreme god of the augural religion and therefore capable of giving the same blessing to the Republic.
He sustained and governed and the same blessing that was given to the agricultural settlements of the beginning. Augustus had, before accepting this name, rejected the name of Romulus. That would have evoked the founding of the city under the auspices of Jupiter by the first king of Rome. He preferred the more abstract name of Augustus that avoided the reference to a full-fledged monarchy and called forth the idea of a blessed founding and refounding in a still more charismatic way.
It might have been, again, Cicero who communicate it to the young Augustus-- you must say 19 years at the beginning-- this central concept of legitimacy, for Cicero was when he met him not only an experienced member of the augural college, but had also cleared in his constitutional draft De Legibus, On the Laws, the central role of this college of priests, introducing the popular augurals as interprets of the highest god of Jupiter, the best and richest, interpreted juris [? optimi ?] [? maximi. ?] The concept of interpreting Jupiter, the god of the clear sky, gives us the decisive clue.
For in fact, the eldest founding in Rome that Augustus renewed was done in a way that interpreted Jupiter, the god of light and order, the god of the clear sky. To understand it, we must now take a brief look at the beginning of the Roman legal order. It is a look partly on what we nowadays can reconstruct with modern methods, partly on what we see in the memory of the Romans themselves. To the letter belongs the fact that when the Romans, with the beginning of the Hellenistic period, had to translate the Greek word for universal or natural law, they did not choose natural law, juris naturalis, but jus gentium, referring to the fact that the elder settlements in the Plain of Latium, called gentes, represented in hindsight what in the Greek theory was called the Golden Age, the period of the happy beginnings of human social life.
Those gentes were independent villages on the Plain of Latium, today it's Latsio, united through common language and common culture. About 20 of them formed a union that created the foundation of the eldest patrician Rome by transposing the original idea of the gentes to the new entity formed by the union of the 20 gentes. Where in Greece we have the phenomenon megalopolis-- megalopolis, a polis formed by the fusion of several polis-- we have in the eldest constitutional layer of Rome a [INAUDIBLE] a big gentes formed by the fusion of many of them.
The result was that Rome could continue to regard herself as an agricultural settlement that could serve for its colonies small, fortified agricultural settlements not withstanding the differences of size as a model. In Germany, Cologne is still a remnant of that founding of the Roman colonizing enterprise. The leading concepts that ordered this model and enrich augural religion and law was not yet divided was a specific answer to the challenge of the so-called Neolithic revolution, the beginning of sedentary agriculture which introduced a new period in human history.
The leading idea of this religion was that the supreme god of the sky-- Jupiter, the best and richest, Jupiter optimus maximus-- was in favor of the agricultural revolution, the so-called Neolithic revolution, which was to change the face of the world so drastically. The god would help to do it under the condition that the new beginning was put under his authority. That required that the new image he will be offered by the agricultural settlement did respect the principles of clarity and order that a supreme divinity of the sky represented.
This was realized by projecting the celestial order into the human condition, technically primarily by a territory measured out for agriculture according to a scheme that reflected at the same time the apparent movement of the sky as the rectitude of the radiation of light, creating thereby a huge checkerboard coordinated through a central cross. And secondly, by a human community composed of individual families and governed by a priest king who preserved this social compound in a pure and peaceful form by solemn jurisdiction and rites of purification.
By this means, divine peace with all the benevolent and numerous gods whose presence was felt in nature was assured, and by that their undisturbed and fruitful working. The name of this blessing that became visible in the good outcome of the crops and fertility of the livestock was pax, peace, and [INAUDIBLE], peace and friendliness of the gods, pax and [INAUDIBLE] The name of the single settler was [? vin, ?] the word for friend that still exists in the vocabulary of some Indo-European languages as Scandinavian and Dutch.
In the legal cosmos formed by a community of [? vin, ?] everyone was protected by a procedure destined to vindicate-- to vindicate, the same word-- his freedom and all of what was regarded as his own-- the [INAUDIBLE] of his land, the members of his family, the livestock used to plow and fertilize the fields, and all his chattel and all the other belongings. It is typical for the continuity of the Roman law that the Latin word vindicare, that contains the notion of vin, a friend, et cetera, the friendliness of the world, remained absolutely central throughout its history for all the individual rights of freedom and property.
The central conviction that the god of the sky was in favor of agriculture was formed by an observation maintained forever in a particular religious rite of protection. Whenever a Roman ambassador had to go into a foreign country, he was put under the special protection of Jove with the means of a sword taken from the holy grove, the clearance that was a dividing place of the priest-king of the beginning. This religious rite shows that the Roman religion attributed to the sword the quintessence the protective and benevolent power experienced in their settlement and guaranteed by all what the priest-king performed to maintain the peaceful order that venerated the god.
The logic can be understood when we imagine people on the verge of the Neolithic revolution taking sight in clearance of sort of grass with blades and stalks full of seeds. That is the planned of all cereals. Here the god of the sky has sent a clear message for those minds still in later times ridden by anxiety when clearing a forest and rooting out its trees and shrubs. The message they read was Jupiter is in favor of clearing the woods to permit the growth of fertile grass and will help to preserve a favorite [? piece ?] with the forces active in nature, provided that settling men will project on the territory and within the settlement a divine order that venerates the supremacy of the god of the clear sky, of Jupiter the best and the richest.
The holy grove became consequently with its holy salts the site of the priest-king who venerated the god, not only venerated the gods and Jupiter by religious rites, but especially by creating a peaceful order in the settlement of the territory and in all legal relationships. The enduring success of this founding idea is due to the basic soundness of the direction it gave to all organizing activities and to the easiness with which it could be transferred to greater entities. Social peace on the basis of the independence of every single household respected as the site where work is done and new members of the community are raised is good policy and can be applied for a village and the city-state alike.
It is also independent of the kind of work and is therefore equally valid for the business of a single household is no longer mainly agriculture, but manufacturing or trading or something else. Therefore, the idea to please Jove as a sign of a well-ordered citizenry remained a central feature of Roman law and was repeated every five years in the [? solemn ?] census. The creation of such an order coincided with the establishment of the settlement with its different families or households in the surveyed territory.
Its maintenance was realized by intervening whenever there was a strife, a dispute, between the settlers in regard of their part in the established order, with the scope to reaffirm it by deciding-- that is, who was entitled to the use of the disputed piece of land or by determining the disputed boundaries between two possessions. This activity was jurisdiction and exclusively done with the means of regal authority that objectively declared what was right in the given social situation and relationship. It never, never used the means of command reserved for the military, but proceeded by declaring one relationship and the exercise of it, the just one.
The preservation of the rule of law is seen as a form of veneration of the sublime power of the sky and a means to insure the blessing of the god was entirely a religious task devoted to peace. It required a charisma in an undisturbed contact with the clear sky, not only war and lightning but also the world of the military preparing war had therefore to be kept at a safe distance. Any contact was seen as a contamination. Here is the reason why the official garment worn by the Romans was the peaceful toga, a loose, flowing single piece of cloth covering the whole body apart from the right arm.
It is close to impossible to behave aggressively in such an outfit. When Cicero said, [SPEAKING LATIN], military power must give way to the superiority of the peaceful rule of law, he referred to a deeply--rooted tradition. Since this law organized from the beginning the lives of free settlers under the rule of law, binding the priest-king and the later magistrate to the role of administering this order, the Romans had good reason for their conviction that all the traits of the Republic were already formed under the first kings of the megagentes in which the legitimacy of the kingship came from the [? patries, ?] the founding fathers present in the Senate.
It was therefore easy for the Romans to interpret their beginnings in rewriting the history in the light of the Hellenistic theories they later adopted. The system offered by the founding allowed such reinterpretation without destroying its sacred continuity. With this beginning, the Romans or the early Latins had made the best of the Neolithic revolution that brought sedentary agriculture by reacting to it with the creation of villages living under the rule of law that established freedom for the settler, giving peaceful form for every relevant social relationship.
The priest-king in charge wielded authority and the power to interpret and to clarify, but had no right to command. The command imperium was an institution of the military, and I repeat it, from which the [INAUDIBLE] of the [INAUDIBLE] peace was anxiously separated. One is a well-known rule that a military commander-in-chief who passed the precinct of the city that repeated the precinct of the ancient village lost immediately his command. Other great Mediterranean cultures like Egypt and Mesopotamia based, too, on the Neolithic revolution made another choice and established absolute kings that exerted the same military might they used against the enemy also against their subjects.
Their law was consequentially, as the famous Codex Hammurabi tells us and other paralegal orders, based on commands. The imagery is accordingly very different. Where the Augustine propaganda insisted in Rome on the Pax Romana showing Augustus in a peaceful toga performing rights to secure the peace of the gods, the pharaoh of Egypt is often seen with a swinging club, killing a fettered person. In the Mesopotamian region, we find similar images.
In Roman tradition, this would have constituted a grave violation of the necessary separateness of peace and war, of the distinction between the reign of Jupiter and the reign of Mars. But the emperor realized also that it might be easier to govern that way, so when Egypt became finally a Roman province under Augustus, some Roman emperors found it attractive to pose as a pharaoh swinging the club, the mace. I remember having seen the Roman Emperor Caracalla on a temple wall making this physical exercise.
In a recent discovery-- and you'll see what I have said on the last page of my handout-- in a recent discovery in the middle parts of Europe in the center of today's Germany dating from the Neolithic period, this recent discovery proves that the idea brought to perfection by the proto Romans to cultivate the fields venerating on Earth the divine order visible in the sky was very diffused in this period. The famous disk of Nebra, discovered only nine years ago, is intensely related to agriculture and is, in fact, showing a constellation of sun, moon, and the Pleiades that represents for the region the traditional beginning of the agricultural year.
Oh, I thank you. I have only five minutes. I will come to a close. But I'm confident that five minutes will do. The conviction that the supreme divinity is revered by establishing and showing order and peace in the settlement in this territory was present and visible in this clear sky watered over the land had important consequences in what we could call international affairs. The belief that the divinity was validly and equally present over every settlement or state-- that is that every settlement had not only its share in its territorial possession, but also in the divine blessing of its sky-- constituted in internationally the principle of perfect equality.
The sky was the same for every sentiment and equally divided. The divinity looking from above demanded everywhere the same, to venerate her by responding to her beauty and clarity with a peaceful on Earth. The result was that [INAUDIBLE] the law between the original sentiments of Latium represented an international law of outstanding qualities. I will close now with an observation that the common law, the younger sister of this civil law, was characterized by the same combination of history and reason, and as such with equal clarity not based command, but on authority.
It suffices to quote the great lawyer Edward Cook, copies of whose books were on board the Mayflower and who famously explained to the king of England, James I, who wanted to interfere with his commands into the court of law that law is based on artificial reason that requires a long and dedicated study. Cook expressed his deep belief in the presence of reason in the historically given law. He administered by saying, I quote, reason is the life of the law. Nay, the common law itself is nothing else but reason gotten by long study, observation, and experience and not of every man's natural reason for-- now he continues in Latin-- [SPEAKING LATIN], nobody is born an expert.
As to make clear that he was as convinced as the Romans were of the fact that a legal relation preexisted decision and is not created by the decision, a form related forcefully, the function of a judge is not to make but to declare the law according to the golden [INAUDIBLE] of the law and not the crooked court of discretion and he summarizes the gist of civil law when he names as the first purpose for which cities were instituted, I quote, for conservation of laws whereby every man enjoys his own in peace.
The book that elaborates the deep affinity between the spirit of the Roman law and the spirit of the common law described by a very impressive book of Roscoe Pound is still to be written. It would have also to deal with the perils between the Roman origin and the origin of the union you are living in. Some parallels are striking, not the least importance of land surveying for the establishment of villages dominated by freeholders. Those American land surveyors practicing this fine art-- you see also in the handout it's a Roman art-- did not only feel themselves in the tradition of the Roman land surveyors who were the secular practitioners of an initially purely [? augural ?] technique, but were so imbued by classical erudition that it is their merit that a civilian and a Romanist feels so much at home here, with all these places recalling classical antiquity-- Ithaca and Veracruz, and of course Romulus, symbolizing, as you have heard, the importance of a blessed founding for a constitution and a thriving republic. I thank you very much for your attention.
ROBERT SUMMERS: Thank you very much. Thank you very much, Professor Behrends, for that remarkable presentation. We have time for one or two questions if you would care to ask a question. I know that afterwards, I will be asked many questions about your talk but I will not be able to answer so well as you. So here is your chance. I'm sure someone has at least one question. Yes?
Are there an situations where there was a clash between the military authority and then the civil or spiritual authority and the civil or spiritual authority won out?
OKKO BEHRENDS: Oh, yes. There were many clashes, especially when a military commander-in-chief wanted to have a triumph. He had to be very careful not to franchise the precinct of the city-state because when he went over this threshold, he lost immediately his power because there was this basic rule of the incompatibility between military command and the peaceful order having its center in the city, in the city-state.
There are many interesting items. In the ancient calendar preserved from the very beginning of Rome, there is a rite called [SPEAKING LATIN]. This means that people in the ancient connotation were the military, the Romans under command of a commander were the populace. And the rex was the priest-king King who had to preserve the peaceful order. And there was careful observation not to contaminate the charisma of peace with the disorder of law.
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A.D. White Professor-at-Large, Okko Behrends is a professor and Chair of Roman Law, Civil Law at the University of Gottingen, Gottingen, Germany. Behrends' work describes the way law influences society as well as the way society influences the law. He has published extensively on classical Roman law including private law, constitutional legal history, legal science and philosophy in the history of Roman jurisprudence, the constitutional economic and social significance of Roman private law and theory, the Twelve Tables' and the nature and limits of positivism in ancient and modern legal thought.
Behrends spoke to Professor Robert Summer's students on Oct. 6, 2008 in Myron Taylor Hall.