Pacta Sunt Servanda
| Published date | 01 April 1947 |
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00045.x |
| Author | J. H. Gebhardt |
| Date | 01 April 1947 |
PACTA SUNT SERVANDA
I
DEAN
Pound, whose teaching owes much to Kohler's legal
philosophy, once wrote
:
But
relative to what? Kohler answers that it is relative to
civilisation, and laws are relative to the civilisation
of
the
time and place. There is no universal body of legal
institutions and legal rules for all civilisations. Instead
there
is
one universal idea, namely, human civilisation.
'
'
Civilisation
'
is
here the translation of Kohler's term
'
Kultur
',
a
term of some ambiguity in the original German,
which Kohler once defined as
'the sum of achievements which Man has attained'
(sc.
at
a
given time) 'with regard to mastering the
universe through the means of Knowledge, Art, and
Domination of Matter.'
'
Everyone has begun to say that law is relative.
In the same context Kohler emphasises that
No
one has
so
far succeeded in defining life; certainly one of
the qualities
of
a
living being is that it continuously changes,
or,
as
Goethe has it, dies and is reborn."
If
this be true, nothing can be stated about law in general
but that it
is
'
a rule of conduct binding on members of a common-
'
Law, like Custom, is not dead, but a living being.'
wealth as such
'.5
'
Binding
'
ought not to be understood as
'
enforced
'.
'
We may better realise the fundamental character of
law by trying to conceive its negation
or
opposite. This
will be found, it is submitted, in the absence of order
rather than in the absence of compulsion
'.6
It
is
therefore just as inadmissible to reserve the term of
'
law
'
1
Interpretations
of
Legal
History
(Cambridge, 19%3),
p.
143.
*
J.
Kohler,
Einfiihrung
in
die
Rechtswissenschajt,
6th ed., edd. Oertinann
&
(My
translation.)
3
Loc.
cit.,
p.
4.
4
'
Und wofern du die8 nicht ha.st,!Dieses Stirb und WerdeiBist
du
nur
ein
5
Sir
F.
Pollock,
First
Book
of
Jurisprudence,
6th ed.
(London,
1929),
p.
29.
6
Pollock,
loc.
cit.,
p.
33.
159
Honig,, Leipzig, 1929,
p.
5.
triiber
Gast/Auf
der dunklen
Erde.
(My
translation.)
(West-Oestlicher Divan.)
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