This page has been validated.
The Struggle for Law
aims, and passions which the uncultured man looks upon as the real domain of the law!
But that height, many may say, is so great that it is visible only to the eyes of the philosophy of law; it is never thought of in practical life; no one institutes an action for the sake of the idea of law. To refute this statement, I might refer to the Roman law, in which the actuality of this ideal view is attested most clearly by the existence of the popular actions,[1] but we would be doing ourselves a
- ↑ I would remark, for the benefit of those of my readers who have not studied law, that these suits (actiones populares) afforded an opportunity to all who desired it to appear as representatives of the law and to bring those who had violated it to account; and not only where there was question of the public interest, and consequently also of that of the accuser, but wherever an individual whose rights had been violated was not in a way to defend himself fully, as, for instance, when a minor had been wronged in a contract of sale, or where a tutor had been unfaithful to his pupil, etc. See my “Geist des röm. Rechts,” iii, p. 107. These actions, therefore, involved an appeal to the ideal feeling which defends the law because it is the law, and not on account of any personal interest. Others of these actions appealed to the ordinary motive of cupidity, by causing the accuser to hope for the fine imposed on the accused, and hence it is that the same stain attached to them, or rather to their institution for gain, which among us attaches to informers. When I add that the actions of the second class mentioned above disappeared in the later Roman law, and that those of the first have disappeared in our own, every reader will be able to draw the correct conclusion from these premises; viz., that the conditions which they supposed had disappeared.
80
