ideas. No laws in the world make this last and deepest element explicit, because — just because — it is self-evident. In all of them the essential is tacitly presupposed; in application it is not only the formula but also, and primarily, the inexpressible element beneath it that the people inwardly understands and can practise. Every law is, to the extent that it would be impossible to exaggerate, customary law. Let the statute define the words; it is life that explains them.
If, however, a scholars' law-language of alien origin and alien scheme tries to bind the native and proper law, the ideas remain void and the life remains dumb. Law becomes, not a tool, but a burden, and actuality marches on, not with, but apart from legal history.
And thus it is that the law-material that our Civilization needs fits only in externals, or even not at all, with the Classical scheme of the law-books, and for the purposes of our proper jurisprudence and our educated thought generally is still formless and therefore unavailable.
Are persons and things, in the sense of present-day legislation, law-concepts at all? No! They merely serve to draw the ordinary distinction, the zoölogical distinction, so to say, between man and the rest. But of old the whole metaphysic of Classical being adhered to the notion of "persona." The distinction between man and deity, the essence of the Polis, of the hero, of the slave, the Cosmos of stuff and form, the life-ideal of Ataraxia, were the self-evident premisses, and these premisses have for us completely perished. In our thought the word "property" is tied up with the Classical static definition, and consequently, in every application to the dynamism of our way of living it falsifies. We leave such definitions to the world-shy abstract professors of ethics, jurists, and philosophers and to the unintelligent debate of political doctrinaires — and this although the whole understanding of the economic history of this day rests upon the metaphysic of this one notion.
It must be emphasized then — and with all rigour — that Classical law was a law of bodies, while ours is a law of functions. The Romans created a juristic statics; our task is juristic dynamics. For us persons are not bodies, but units of force and will; and things are not bodies, but aims, means, and creations of these units. The Classical relation between bodies was positional, but the relation between forces is called action. For a Roman the slave was a thing which produced new things. A writer like Cicero could never have conceived of "intellectual property," let alone property in a practical notion or in the potentialities of talent; for us, on the contrary, the organizer or inventor or promoter is a generative force which works upon other, executive, forces, by giving direction, aim, and means to their action.[1] Both belong to economic life, not as possessors of things, but as carriers of energies.
- ↑ Note, in this connexion, the remarkable development in modern American industry of a professional managerial class, distinct from the capitalist, the technician, and the "worker." — Tr.
