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The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. Both these examples will be examined presently.
The code therefore consists of two parts: immutable laws more or less embodying great principles beyond the reach of revisions, and a body of case-law which, since 1746, has been subject to revision every five years. With the publication of the Penal Code, the legal responsibilities of the new Emperor began and ended.
Except this, there is no such thing as unwritten law in the world. English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness.
What difficulties and miscarriages attend the business of transmuting the recognized materials for happiness into living human joy? Even these questions he would not have been content to handle in high philosophic fashion; he would have insisted on instances, and would have subscribed to no code that is not carefully built out of case-law.
To him they form a kind of case-law, which is to be extracted by the learned from the works of a certain number of "correct writers", ancient and modern; and which, once established, is binding for all time both on the critic and on those he summons to his bar. In effect, this was to declare that beauty can be conceived in no other way than as it presented itself, say, to Virgil or to Pope.
A body of law bearing a very close and very instructive resemblance to our case-law in those particulars which I have noticed, was known to the Romans under the name of the Responsa Prudentum, the "answers of the learned in the law." As with us, all legal language adjusted itself to the assumption that the text of the old Code remained unchanged. There was the express rule.
But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law, and only different from code-law because it is written in a different way. From the period of Customary Law we come to another sharply defined epoch in the history of jurisprudence.
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