Here, then, is the task that German thought of the future has to perform. From the practical life of the present it has to develop the deepest principles of that life and elevate them into basic law-ideas. If our great arts lie behind us, our great jurisprudence is yet to come.
For the work of the nineteenth century — however creative that century believed itself to be — was merely preparatory. It freed us from the book of Justinian, but not from the concepts. The ideologues of Roman law among scholars no longer count, but scholarship of the old cast remains. It is another kind of jurisprudence that is needed now to free us from the schematism of these concepts. Philological expertness must give place to social and economic.
A glance at German civil and penal law will make the position clear. They are systems ringed with a chaplet of minor laws — it was impossible to embody the material of these in the main law. Conceptually, and therefore syntactically, that which could not be understood in terms of the Classical scheme separates itself from that which can be so understood.
How was it that in 1900 the theft of electric power — after grotesque discussions as to whether the matter in dispute was a corporeal thing[1] — had to be dealt with under an ad hoc statute? Why was it impossible to work the substance of patent law into the ensemble of the law about things? Why was copyright law unable conceptually to differentiate the intellectual creation, its communicable form the manuscript, and the objective product in print? Why, in contradiction with the law of things, had the artistic and the material property in a picture to be distinguished by separating acquisition of the original from acquisition of the right to reproduce it? Why is the misappropriation of a business idea or a scheme of organization unpunishable, and theft of the piece of paper on which it is set forth punishable? Because even to-day we are dominated by the Classical idea of the material thing.[2] We live otherwise. Our instinctive experience is subject to functional concepts, such as working power, inventiveness, enterprise, such as intellectual and bodily, artistic and organizing, energies and capacities and talents. In our physics (of which the theory, advanced though it is, is but a copy of our present mode of life) the old idea of a body has in principle ceased to exist — as in this very instance of electrical power. Why is our law conceptually helpless in the presence of the great facts of modern economics? Because persons, too, are known to it only as bodies.[3]
If the Western jurisprudence took over ancient words, yet only the most superficial elements of the ancient meanings still adhered to them. The consistency of the text disclosed only the logical use of the words, not the life that underlay them. No practice can reawaken the silent metaphysic of old jural
