We must further inquire into the facts of daily life, apart from their legal aspect. We lawyers are always inclined to assume that our rule of decision is a faithful expression of how things are actually done, - that a rule of law is also a rule of life as it is. But in reality these may be two very different things. In reality life creates primarily its own rules. How small is the influence of the law of family, as formulated in rules, on the actual conduct of family life; how different the interpretation and execution of contracts in actual business from the interpretation by the courts in the few cases in which a decision passes upon them!
Learned Romanists reveal to us that what was in legal theory said to be the exclusive property of the "paterfamilias" was in reality held in common by his family, and that the "filiusfamilias," who according to the strict law had a status almost identical with that of a slave, had in reality a position entirely different, so great was sometimes, even in Rome, the difference between the archaizing rule of law and the rule of life. And we may be sure that to-day this difference is no less, considering that the rule of law is based in part on alien standards of decision, Roman or French, while the rule of life has grown out of native custom. Does anybody really believe that anywhere in Germany or Austria fathers actually do bestow marriage portions on their daughters in accordance with the rules of the Civil Code, or that vendors actually do make good the defects of their wares in the manner the law provides?
It is no answer to say that these are matters of popular custom, not of law; for both the duty of giving a marriage portion and the law of warranty for defects, as found in the much-lauded Roman law, arose themselves out of just such popular custom. In every healthy course of legal development, a good custom will become transformed into a rule of law, while a bad custom will be opposed by both legislation and the decisions of the courts; but for both purposes it is necessary first of all to know the custom.17 However, unless one narrowly identifies all law with rules of decision, one will have to admit that such customs, being forms of organization of modern society, are undoubtedly of a jural nature, and the reason they are not enforced legally is simply that the courts are not governed, as they were in Rome, by native rules of decision, but for the most part by alien or antiquated ones. That, however, need not keep a lawyer from investigating them. And it would be worth while some day to make an attempt at delineating the law of family of the present day,-meaning thereby the law according to which the members of families actually live, not the law according to which lawsuits regarding family quarrels are decided. Or one might undertake to show what property is actually like in woodland and meadow, field and pasture, instead of how it looks in the Civil Code. That, to be sure, would require not only great learning, especially of the historical sort, but also an extraordinary sense of realities. But, if it were done successfully, surely "the work would praise the master." For (to quote from Goethe's "Faust") "where'er you strike it, life is interesting."
17 In Rome, as elsewhere, neighbors were accustomed to consider each other's convenience; in cases of litigation between neighbors, the duties which were, according to such custom, mutually owing to them became the basis of judgment. Such was the origin of the rules enumerated in Windscheid's "Pandekten," vol. 1, Sec. 169, lines 1-8. To-day also neighbors are in the habit of considering each other's convenience in certain respects, but this custom is hardly ever utilized to arrive at a decision, simply because lawyers know nothing about it. Consequently it cannot develop into a rule of law. The limitations of property rights in favor of neighbors which are enumerated in Windscheid's "Pandekten," and which, having arisen out of Roman custom, became part of Roman law-these, and these alone, every lawyer is supposed to know - at least at the time of his examination.