[1] _Purbeckian_ from the "Isle" of Purbeck. _Aquilonien_ from Aquilo
(Nord). _Bononien_ from Bononia (Boulogne). _Virgulien_ from _Exogyra
virgula_. _Pteroceran_ from _Pteroceras oceani_. _Astartien_ from
_Astarte supracorollina_. _Rauracien_ from Rauracia (Jura).
_Argovien_ from Argovie (Switzerland). _Neuvizien_ from Neuvizy
(Ardennes). _Divesien_ from Dives (Calvados). _Bathonien_ from Bath
(England). _Bajocien_ from Bayeux (Calvados). _Toarcien_ from
Toarcium (Tours). _Charmouthien_ from Charmouth (England).
_Sinemourien_ from Sinemurum, Semur (Côte d'Or). _Hettangien_ from
Hettange (Lorraine).
JURAT (through Fr. from med. Lat. _juratus_, one sworn, Lat. _jurare_,
to swear), a name given to the sworn holders of certain offices. Under
the _ancien régime_ in France, in several towns, of the south-west, such
as Rochelle and Bordeaux, the _jurats_ were members of the municipal
body. The title was also borne by officials, corresponding to aldermen,
in the Cinque Ports, but is now chiefly used as a title of office in the
Channel Islands. There are two bodies, consisting each of twelve jurats,
for Jersey and the bailiwick of Guernsey respectively. They are elected
for life, in Jersey by the ratepayers, in Guernsey by the elective
states. They form, with the bailiff as presiding judge, the royal court
of justice, and are a constituent part of the legislative bodies. In
English law, the word jurat (_juratum_) is applied to that part of an
affidavit which contains the names of the parties swearing the affidavit
and the person before whom it was sworn, the date, place and other
necessary particulars.
JURIEN DE LA GRAVIÈRE, JEAN BAPTISTE EDMOND (1812-1892), French admiral,
son of Admiral Jurien, who served through the Revolutionary and
Napoleonic wars and was a peer of France under Louis Philippe, was born
on the 19th of November 1812. He entered the navy in 1828, was made a
commander in 1841, and captain in 1850. During the Russian War he
commanded a ship in the Black Sea. He was promoted to be rear-admiral on
the 1st of December 1855, and appointed to the command of a squadron in
the Adriatic in 1859, when he absolutely sealed the Austrian ports with
a close blockade. In October 1861 he was appointed to command the
squadron in the Gulf of Mexico, and two months later the expedition
against Mexico. On the 15th of January 1862 he was promoted to be
vice-admiral. During the Franco-German War of 1870 he had command of the
French Mediterranean fleet, and in 1871 he was appointed "director of
charts." As having commanded in chief before the enemy, the age-limit
was waived in his favour, and he was continued on the active list.
Jurien died on the 4th of March 1892. He was a voluminous author of
works on naval history and biography, most of which first appeared in
the _Revue des deux mondes_. Among the most noteworthy of these are
_Guerres maritimes sous la république et l'empire_, which was translated
by Lord Dunsany under the title of _Sketches of the Last Naval War_
(1848); _Souvenirs d'un amiral_ (1860), that is, of his father, Admiral
Jurien; _La Marine d'autrefois_ (1865), largely autobiographical; and
_La Marine d'aujourd'hui_ (1872). In 1866 he was elected a member of the
Academy.
JURIEU, PIERRE (1637-1713), French Protestant divine, was born at Mer,
in Orléanais, where his father was a Protestant pastor. He studied at
Saumur and Sedan under his grandfather, Pierre Dumoulin, and under
Leblanc de Beaulieu. After completing his studies in Holland and
England, Jurieu received Anglican ordination; returning to France he was
ordained again and succeeded his father as pastor of the church at Mer.
Soon after this he published his first work, _Examen de livre de la
réunion du Christianisme_ (1671). In 1674 his _Traité de la dévotion_
led to his appointment as professor of theology and Hebrew at Sedan,
where he soon became also pastor. A year later he published his
_Apologie pour la morale des Réformés_. He obtained a high reputation,
but his work was impaired by his controversial temper, which frequently
developed into an irritated fanaticism, though he was always entirely
sincere. He was called by his adversaries "the Goliath of the
Protestants." On the suppression of the academy of Sedan in 1681, Jurieu
received an invitation to a church at Rouen, but, afraid to remain in
France on account of his forthcoming work, _La Politique du clergé de
France_, he went to Holland and was pastor of the Walloon church of
Rotterdam till his death on the 11th of January 1713. He was also
professor at the école illustre. Jurieu did much to help those who
suffered by the revocation of the Edict of Nantes (1685). He himself
turned for consolation to the Apocalypse, and succeeded in persuading
himself (_Accomplissement des prophéties_, 1686) that the overthrow of
Antichrist (i.e. the papal church) would take place in 1689. H. M. Baird
says that "this persuasion, however fanciful the grounds on which it was
based, exercised no small influence in forwarding the success of the
designs of William of Orange in the invasion of England." Jurieu
defended the doctrines of Protestantism with great ability against the
attacks of Antoine Arnauld, Pierre Nicole and Bossuet, but was equally
ready to enter into dispute with his fellow Protestant divines (with
Louis Du Moulin and Claude Payon, for instance) when their opinions
differed from his own even on minor matters. The bitterness and
persistency of his attacks on his colleague Pierre Bayle led to the
latter being deprived of his chair in 1693.
One of Jurieu's chief works is _Lettres pastorales adressées aux
fidèles de France_ (3 vols., Rotterdam, 1686-1687; Eng. trans., 1689),
which, notwithstanding the vigilance of the police, found its way into
France and produced a deep impression on the Protestant population.
His last important work was the _Histoire critique des dogmes et des
cultes_ (1704; Eng. trans., 1715). He wrote a great number of
controversial works.
See the article in Herzog-Hauck, _Realencyklopädie_; also H. M. Baird,
_The Huguenots and the Revocation of the Edict of Nantes_ (1895).
JURIS, a tribe of South American Indians, formerly occupying the country
between the rivers Iça (lower Putumayo) and Japura, north-western
Brazil. In ancient days they were the most powerful tribe of the
district, but in 1820 their numbers did not exceed 2000. Owing to
inter-marrying, the Juris are believed to have been extinct for half a
century. They were closely related to the Passes, and were like them a
fair-skinned, finely built people with quite European features.
JURISDICTION, in general, the exercise of lawful authority, especially
by a court or a judge; and so the extent or limits within which such
authority is exercisable. Thus each court has its appropriate
jurisdiction; in the High Court of Justice in England administration
actions are brought in the chancery division, salvage actions in the
admiralty, &c. The jurisdiction of a particular court is often limited
by statute, as that of a county court, which is local and is also
limited in amount. In international law jurisdiction has a wider
meaning, namely, the rights exercisable by a state within the bounds of
a given space. This is frequently referred to as the territorial theory
of jurisdiction. (See INTERNATIONAL LAW; INTERNATIONAL LAW, PRIVATE.)
JURISPRUDENCE (Lat. _jurisprudentia_, knowledge of law, from _jus_,
right, and _prudentia_, from _providere_, to foresee), the general term
for "the formal science of positive law" (T. E. Holland); see LAW. The
essential principles involved are discussed below and in JURISPRUDENCE,
COMPARATIVE; the details of particular laws or sorts of law (CONTRACT,
&c.) and of individual national systems of law (ENGLISH LAW, &c.) being
dealt with in separate articles.
The human race may be conceived as parcelled out into a number of
distinct groups or societies, differing greatly in size and
circumstances, in physical and moral characteristics of all kinds. But
they all resemble each other in that they reveal on examination certain
rules of conduct in accordance with which the relations of the members
_inter se_ are governed. Each society has its own system of laws, and
all the systems, so far as they are known, constitute the appropriate
subject matter of jurisprudence. The jurist may deal with it in the
following ways. He may first of all examine the leading conceptions
common to all the systems, or in other words define the leading terms
common to them all. Such are the terms _law_ itself, _right_, _duty_,
_property_, _crime_, and so forth, which, or their equivalents, may,
notwithstanding delicate differences of connotation, be regarded as
common terms in all systems. That kind of inquiry is known in England as
analytical jurisprudence. It regards the conceptions with which it deals
as fixed or stationary, and aims at expressing them distinctly and
exhibiting their logical relations with each other. What is really meant
by a right and by a duty, and what is the true connexion between a right
and a duty, are types of the questions proper to this inquiry. Shifting
our point of view, but still regarding systems of law in the mass, we
may consider them, not as stationary, but as changeable and changing, we
may ask what general features are exhibited by the record of the change.
This, somewhat crudely put, may serve to indicate the field of
historical or comparative jurisprudence. In its ideal condition it would
require an accurate record of the history of all legal systems as its
material. But whether the material be abundant or scanty the method is
the same. It seeks the explanation of institutions and legal principles
in the facts of history. Its aim is to show how a given rule came to be
what it is. The legislative source--the emanation of the rule from a
sovereign authority--is of no importance here; what is important is the
moral source--the connexion of the rule with the ideas prevalent during
contemporary periods. This method, it is evident, involves not only a
comparison of successive stages in the history of the same system, but a
comparison of different systems, of the Roman with the English, of the
Hindu with the Irish, and so on. The historical method as applied to law
may be regarded as a special example of the method of comparison. The
comparative method is really employed in all generalizations about law;
for, although the analysis of legal terms might be conducted with
exclusive reference to one system, the advantage of testing the result
by reference to other systems is obvious. But, besides the use of
comparison for purposes of analysis and in tracing the phenomena of the
growth of laws, it is evident that for the purposes of practical
legislation the comparison of different systems may yield important
results. Laws are contrivances for bringing about certain definite ends,
the larger of which are identical in all systems. The comparison of
these contrivances not only serves to bring their real object, often
obscured as it is in details, into clearer view, but enables legislators
to see where the contrivances are deficient, and how they may be
improved.
The "science of law," as the expression is generally used, means the
examination of laws in general in one or other of the ways just
indicated. It means an investigation of laws which exist or have existed
in some given society in fact--in other words, positive laws; and it
means an examination not limited to the exposition of particular
systems. Analytical jurisprudence is in England associated chiefly with
the name of John Austin (q.v.), whose _Province of Jurisprudence
Determined_ systematized and completed the work begun in England by
Hobbes, and continued at a later date and from a different point of view
by Bentham.
Austin's first position is to distinguish between laws properly so
called and laws improperly so called. In any of the older writers on
law, we find the various senses in which the word is used grouped
together as variations of one common meaning. Thus Blackstone advances
to his proper subject, municipal laws, through (1) the laws of inanimate
matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws
of nature, which are rules imposed by God on men and discoverable by
reason alone, and (4) the revealed or divine law which is part of the
law of nature directly expounded by God. All of these are connected by
this common element that they are "rules of action dictated by some
superior being." And some such generalization as this is to be found at
the basis of most treatises on jurisprudence which have not been
composed under the influence of the analytical school. Austin disposes
of it by the distinction that some of those laws are commands, while
others are not commands. The so-called laws of nature are not commands;
they are uniformities which resemble commands only in so far as they may
be supposed to have been ordered by some intelligent being. But they are
not commands in the only proper sense of that word--they are not
addressed to reasonable beings, who may or may not will obedience to
them. Laws of nature are not addressed to anybody, and there is no
possible question of obedience or disobedience to them. Austin
accordingly pronounces them laws improperly so called, and confines his
attention to laws properly so called, which are commands addressed by a
human superior to a human inferior.
This distinction seems so simple and obvious that the energy and even
bitterness with which Austin insists upon it now seem superfluous. But
the indiscriminate identification of everything to which common speech
gives the name of a law was, and still is, a fruitful source of
confusion. Blackstone's statement that when God "put matter into motion
He established certain laws of motion, to which all movable matter must
conform," and that in those creatures that have neither the power to
think nor to will such laws must be invariably obeyed, so long as the
creature itself subsists, for its existence depends on that obedience,
imputes to the law of gravitation in respect of both its origin and its
execution the qualities of an act of parliament. On the other hand the
qualities of the law of gravitation are imputed to certain legal
principles which, under the name of the law of nature, are asserted to
be binding all over the globe, so that "no human laws are of any
validity if contrary to this." Austin never fails to stigmatize the use
of "natural laws" in the sense of scientific facts as improper, or as
metaphorical.
Having eliminated metaphorical or figurative laws, we restrict ourselves
to those laws which are commands. This word is the key to the analysis
of law, and accordingly a large portion of Austin's work is occupied
with the determination of its meaning. A _command_ is an order issued by
a superior to an inferior. It is a signification of desire distinguished
by this peculiarity that "the party to whom it is directed is liable to
evil from the other, in case he comply not with the desire." "If you are
able and willing to harm me in case I comply not with your wish, the
expression of your wish amounts to a command." Being liable to evil in
case I comply not with the wish which you signify, I am _bound_ or
obliged by it, or I lie under a _duty_ to obey it. The evil is called a
_sanction_, and the command or duty is said to be _sanctioned_ by the
chance of incurring the evil. The three terms _command_, _duty_ and
_sanction_ are thus inseparably connected. As Austin expresses it in the
language of formal logic, "each of the three terms signifies the same
notion, but each _denotes_ a different part of that notion and
_connotes_ the residue."
All commands, however, are not laws. That term is reserved for those
commands which oblige generally to the performance of acts of a class. A
command to your servant to rise at such an hour on such a morning is a
particular command, but not a law or rule; a command to rise always at
that hour is a law or rule. Of this distinction it is sufficient to say
in the meantime that it involves, when we come to deal with positive
laws, the rejection of particular enactments to which by inveterate
usage the term law would certainly be applied. On the other hand it is
not, according to Austin, necessary that a true law should bind persons
as a class. Obligations imposed on the grantee of an office specially
created by parliament would imply a law; a general order to go into
mourning addressed to the whole nation for a particular occasion would
not be a law.
So far we have arrived at a definition of laws properly so called.
Austin holds superiority and inferiority to be necessarily implied in
command, and such statements as that "laws emanate from superiors" to be
the merest tautology and trifling. Elsewhere he sums up the
characteristics of true laws as ascertained by the analysis thus: (1)
laws, being commands, emanate from a determinate source; (2) every
sanction is an evil annexed to a command; and (3) every duty implies a
command, and chiefly means obnoxiousness to the evils annexed to
commands.
Of true laws, those only are the subject of jurisprudence which are laws
strictly so called, or positive laws. Austin accordingly proceeds to
distinguish positive from other true laws, which are either laws set by
God to men or laws set by men to men, not, however, as political
superiors nor in pursuance of a legal right. The discussion of the first
of these true but not positive laws leads Austin to his celebrated
discussion of the utilitarian theory. The laws set by God are either
revealed or unrevealed, i.e. either expressed in direct command, or made
known to men in one or other of the ways denoted by such phrases as the
"light of nature," "natural reason," "dictates of nature," and so forth.
Austin maintains that the principle of general utility, based ultimately
on the assumed benevolence of God, is the true index to such of His
commands as He has not chosen to reveal. Austin's exposition of the
meaning of the principle is a most valuable contribution to moral
science, though he rests its claims ultimately on a basis which many of
its supporters would disavow. And the whole discussion is now generally
condemned as lying outside the proper scope of the treatise, although
the reason for so condemning it is not always correctly stated. It is
found in such assumptions of fact as that there is a God, that He has
issued commands to men in what Austin calls the "truths of revelation,"
that He designs the happiness of all His creatures, that there is a
predominance of good in the order of the world--which do not now command
universal assent. It is impossible to place these propositions on the
same scientific footing as the assumptions of fact with reference to
human society on which jurisprudence rests. If the "divine laws" were
facts like acts of parliament, it is conceived that the discussion of
their characteristics would not be out of place in a scheme of
jurisprudence.
The second set of laws properly so called, which are not positive laws,
consists of three classes: (1) those which are set by men living in a
state of nature; (2) those which are set by sovereigns but not as
political superiors, e.g. when one sovereign commands another to act
according to a principle of international law; and (3) those set by
subjects but not in pursuance of legal rights. This group, to which
Austin gives the name of positive morality, helps to explain his
conception of positive law. Men are living in a state of nature, or a
state of anarchy, when they are not living in a state of government or
as members of a political society. "Political society" thus becomes the
central fact of the theory, and some of the objections that have been
urged against it arise from its being applied to conditions of life in
which Austin would not have admitted the existence of a political
society. Again, the third set in the group is intimately connected with
positive laws on the one hand and rules of positive morality which are
not even laws properly so called on the other. Thus laws set by subjects
in consequence of a legal right are clothed with legal sanctions, and
are laws positive. A law set by guardian to ward, in pursuance of a
right which the guardian is bound to exercise, is a positive law pure
and simple; a law set by master to slave, in pursuance of a legal right,
which he is not bound to exercise, is, in Austin's phraseology, to be
regarded both as a positive moral rule and as a positive law.[1] On the
other hand the rules set by a club or society, and enforced upon its
members by exclusion from the society, but not in pursuance of any legal
right, are laws, but not positive laws. They are imperative and proceed
from a determinate source, but they have no legal or political
sanction. Closely connected with this positive morality, consisting of
true but not positive laws, is the positive morality whose rules are not
laws properly so called at all, though they are generally denominated
laws. Such are the laws of honour, the laws of fashion, and, most
important of all, international law.
Nowhere does Austin's phraseology come more bluntly into conflict with
common usage than in pronouncing the law of nations (which in substance
is a compact body of well-defined rules resembling nothing so much as
the ordinary rules of law) to be not laws at all, even in the wider
sense of the term. That the rules of a private club should be law
properly so called, while the whole mass of international jurisprudence
is mere opinion, shocks our sense of the proprieties of expression. Yet
no man was more careful than Austin to observe these properties. He
recognizes fully the futility of definitions which involve a painful
struggle with the current of ordinary speech. But in the present
instance the apparent paralogism cannot be avoided if we accept the
limitation of laws properly so called to commands proceeding from a
determinate source. And that limitation is so generally present in our
conception of law that to ignore it would be a worse anomaly than this.
No one finds fault with the statement that the so-called code of honour
or the dictates of fashion are not, properly speaking, laws. We repel
the same statement applied to the law of nature, because it resembles in
so many of its most striking features--in the certainty of a large
portion of it, in its terminology, in its substantial principles--the
most universal elements of actual systems of law, and because, moreover,
the assumption that brought it into existence was nothing else than
this, that it consisted of those abiding portions of legal systems which
prevail everywhere by their own authority. But, though "positive
morality" may not be the best phrase to describe such a code of rules,
the distinction insisted on by Austin is unimpeachable.
The elimination of those laws properly and improperly so called which
are not positive laws brings us to the definition of positive law, which
is the keystone of the system. Every positive law is "set by a sovereign
person, or sovereign body of persons, to a member or members of the
independent political society wherein that person or body is sovereign
or superior." Though possibly sprung directly from another source, it is
a positive law, by the institution of that present sovereign in the
character of a political superior. The question is not as to the
historical origin of the principle, but as to its present authority.
"The legislator is he, not by whose authority the law was first made,
but by whose authority it continues to be law." This definition involves
the analysis of the connected expressions _sovereignty_, _subjection_
and _independent political society_, and of _determinate body_--which
last analysis Austin performs in connexion with that of commands. These
are all excellent examples of the logical method of which he was so
great a master. The broad results alone need be noticed here. In order
that a given society may form a society political and independent, the
_generality or bulk_ of its members must be in a _habit_ of obedience to
a certain and common superior; whilst that certain person or body of
persons must not be _habitually_ obedient to a certain person or body.
All the italicized words point to circumstances in which it might be
difficult to say whether a given society is political and independent or
not. Several of these Austin has discussed--e.g. the state of things in
which a political society yields obedience which may or may not be
called habitual to some external power, and the state of things in which
a political society is divided between contending claimants for
sovereign power, and it is uncertain which shall prevail, and over how
much of the society. So long as that uncertainty remains we have a state
of _anarchy_. Further, an independent society to be political must not
fall below a number which can only be called considerable. Neither then
in a state of anarchy, nor in inconsiderable communities, nor among men
living in a state of nature, have we the proper phenomena of a political
society. The last limitation goes some way to meet the most serious
criticism to which Austin's system has been exposed, and it ought to be
stated in his own words. He supposes a society which may be styled
independent, which is considerable in numbers, and which is in a savage
or extremely barbarous condition. In such a society, "the bulk of its
members is not in the habit of obedience to one and the same superior.
For the purpose of attacking an external enemy, or for the purpose of
repelling an attack, the bulk of its members who are capable of bearing
arms submits to one leader or one body of leaders. But as soon as that
emergency passes the transient submission ceases, and the society
reverts to the state which may be deemed its ordinary state. The bulk of
each of the families which compose the given society renders habitual
obedience to its own peculiar chief, but those domestic societies are
themselves independent societies, or are not united and compacted into
one political society by habitual and general obedience to one common
superior, and there is no law (simply or strictly so styled) which can
be called the law of that society. The so-called laws which are common
to the bulk of the community are purely and properly customary
laws--that is to say, laws which are set or imposed by the general
opinion of the community, but are not enforced by legal or political
sanctions." Such, he says, are the savage societies of hunters and
fishers in North America, and such were the Germans as described by
Tacitus. He takes no account of societies in an intermediate stage
between this and the condition which constitutes political society.
We need not follow the analysis in detail. Much ingenuity is displayed
in grouping the various kinds of government, in detecting the sovereign
authority under the disguises which it wears in the complicated state
system of the United States or under the fictions of English law, in
elucidating the precise meaning of abstract political terms.
Incidentally the source of many celebrated fallacies in political
thought is laid bare. That the question who is sovereign in a given
state is a question of fact and not of law or morals or religion, that
the sovereign is incapable of legal limitation, that law is such by the
sovereign's command, that no real or assumed compact can limit his
action--are positions which Austin has been accused of enforcing with
needless iteration. He cleared them, however, from the air of paradox
with which they had been previously encumbered, and his influence was in
no direction more widely felt than in making them the commonplaces of
educated opinion in this generation.
Passing from these, we may now consider what has been said against the
theory, which may be summed up in the following terms. Laws, no matter
in what form they be expressed, are in the last resort reducible to
commands set by the person or body of persons who are in fact sovereigns
in any independent political society. The sovereign is the person or
persons whose commands are habitually obeyed by the great bulk of the
community; and by an independent society we mean that such sovereign
head is not himself habitually obedient to any other determinate body of
persons. The society must be sufficiently numerous to be considerable
before we can speak of it as a political society. From command, with its
inseparable incident of sanction, come the duties and rights in terms of
which laws are for the most part expressed. Duty means that the person
of whom it is predicated is liable to the sanction in case he fails to
obey the command. Right means that the person of whom it is predicated
may set the sanction in operation in case the command be disobeyed.
We may here interpolate a doubt whether the condition of independence
on the part of the head of a community is essential to the legal
analysis. It seems to us that we have all the elements of a true law
present when we point to a community habitually obedient to the
authority of a person or determinate body of persons, no matter what
the relations of that superior may be to any external or superior
power. Provided that in fact the commands of the lawgiver are those
beyond which the community never looks, it seems immaterial to inquire
whether this lawgiver in turn takes his orders from somebody else or
is habitually obedient to such orders when given. One may imagine a
community governed by a dependent legislatorial body or person, while
the supreme sovereign whose representative and nominee such body or
person may be never directly addresses the community at all. We do not
see that in such a case anything is gained in clearness by
representing the law of the community as set by the suzerain, rather
than the dependent legislator. Nor is the ascertainment of the
ultimate seat of power necessary to define political societies. That
we get when we suppose a community to be in the habit of obedience to
a single person or to a determinate combination of persons.
The use of the word "command" is not unlikely to lead to a
misconception of Austin's meaning. When we say that a law is a command
of the sovereign, we are apt to think of the sovereign as enunciating
the rule in question for the first time. Many laws are not traceable
to the sovereign at all in this sense. Some are based upon immemorial
practices, some can be traced to the influence of private citizens,
whether practising lawyers or writers on law, and in most countries a
vast body of law owes its existence as such to the fact that it has
been observed as law in some other society. The great bulk of modern
law owes its existence and its shape ultimately to the labours of the
Roman lawyers of the empire. Austin's definition has nothing to do
with this, the historical origin of laws. Most books dealing with law
in the abstract generalize the modes in which laws may be originated
under the name of the "sources" of law, and one of these is
legislation, or the direct command of the sovereign body. The
connexion of laws with each other as principles is properly the
subject matter of historical jurisprudence, the ideal perfection of
which would be the establishment of the general laws governing the
evolution of law in the technical sense. Austin's definition looks,
not to the authorship of the law as a principle, not to its inventor
or originator, but to the person or persons who in the last resort
cause it to be obeyed. If a given rule is enforced by the sovereign it
is a law.
It may be convenient to notice here what is usually said about the
sources of law, as the expression sometimes proves a stumbling-block
to the appreciation of Austin's system. In the _corpus juris_ of any
given country only a portion of the laws is traceable to the direct
expression of his commands by the sovereign. Legislation is one, but
only one, of the sources of law. Other portions of the law may be
traceable to other sources, which may vary in effect in different
systems. The list given in the _Institutes_ of Justinian of the ways
in which law may be made--_lex_, _plebiscitum_, _principis placita_,
_edicta magistratuum_, and so on--is a list of sources. Among the
sources of law other than legislation which are most commonly
exemplified are the laws made by judges in the course of judicial
decisions, and law originating as custom. The source of the law in the
one case is the judicial decision, in the other the custom. In
consequence of the decisions and in consequence of the custom the rule
has prevailed. English law is largely made up of principles derived in
each of those ways, while it is deficient in principles derived from
the writings of independent teachers, such as have in other systems
exercised a powerful influence on the development of law. The
_responsa prudentum_, the opinions of learned men, published as such,
did undoubtedly originate an immense portion of Roman law. No such
influence has affected English law to any appreciable extent--a result
owing to the activity of the courts of the legislature. This
difference has profoundly affected the form of English law as compared
with that of systems which have been developed by the play of free
discussion. These are the most definite of the influences to which the
beginning of laws may be traced. The law once established, no matter
how, is nevertheless law in the sense of Austin's definition. It is
enforced by the sovereign authority. It was originated by something
very different. But when we speak of it as a command we think only of
the way in which it is to-day presented to the subject. The newest
order of an act of parliament is not more positively presented to the
people as a command to be obeyed than are the elementary rules of the
common law for which no legislative origin can be traced. It is not
even necessary to resort to the figure of speech by which alone,
according to Sir Henry Maine (_Early History of Institutions_, p.
314), the common law can be regarded as the commands of the
government. "The common law," he says, "consists of their commands
because they can repeal or alter or restate it at pleasure." "They
command because, being by the assumption possessed of uncontrollable
force, they could innovate without limit at any moment." On the
contrary, it may be said that they command because they do as a matter
of fact enforce the rules laid down in the common law. It is not
because they could innovate if they pleased in the common law that
they are said to command it, but because it is known that they will
enforce it as it stands.
The criticism of Austin's analysis resolved itself into two different
sets of objections. One relates to the theory of sovereignty which
underlies it; the other to its alleged failure to include rules which in
common parlance are laws, and which it is felt ought to be included in
any satisfactory definition of law. As the latter is to some extent
anticipated and admitted by Austin himself, we may deal with it first.
Frederic Harrison (_Fortnightly Review_, vols. xxx., xxxi.) was at great
pains to collect a number of laws or rules of law which do not square
with the Austinian definition of law as a command creating rights and
duties. Take the rule that "every will must be in writing." It is a very
circuitous way of looking at things, according to Harrison, to say that
such a rule creates a specific right in any determinate person of a
definite description. So, again, the rule that "a legacy to the witness
of a will is void." Such a rule is not "designed to give any one any
rights, but simply to protect the public against wills made under undue
influence." Again, the technical rule in Shelley's case that a gift to A
for life, followed by a gift to the heirs of A, is a gift to A in fee
simple, is pronounced to be inconsistent with the definition. It is an
idle waste of ingenuity to force any of these rules into a form in which
they might be said to create rights.
This would be a perfectly correct description of any attempt to take any
of these rules separately and analyse it into a complete command
creating specific rights and duties. But there is no occasion for doing
anything of the kind. It is not contended that every grammatically
complete sentence in a textbook or a statute is _per se_ a command
creating rights and duties. A law, like any other command, must be
expressed in words, and will require the use of the usual aids to
expression. The gist of it may be expressed in a sentence which,
standing by itself, is not intelligible; other sentences locally
separate from the principal one may contain the exceptions and the
modifications and the interpretations to which that is subject. In no
one of these taken by itself, but in the substance of them all taken
together, is the true law, in Austin's sense, to be found. Thus the rule
that every will must be in writing is a mere fragment--only the limb of
a law. It belongs to the rule which fixes the rights of devisees or
legatees under a will. That rule in whatever form it may be expressed
is, without any straining of language, a command of the legislator. That
"every person named by a testator in his last will and testament shall
be entitled to the property thereby given him" is surely a command
creating rights and duties. After testament add "expressed in writing";
it is still a command. Add further, "provided he be not one of the
witnesses to the will," and the command, with its product of rights and
duties, is still there. Each of the additions limits the operation of
the command stated imperatively in the first sentence. So with the rule
in Shelley's case. It is resolvable into the rule that every person to
whom an estate is given by a conveyance expressed in such and such a way
shall take such and such rights. To take another example from later
legislation. An English statute passed in 1881 enacts nothing more than
this, that an act of a previous session shall be construed as if "that"
meant "this." It would be futile indeed to force this into conformity
with Austin's definition by treating it as a command addressed to the
judges, and as indirectly creating rights to have such a construction
respected. As it happens, the section of the previous act referred to
(the Burials Act 1880) was an undeniable command addressed to the
clergy, and imposed upon them a specific duty. The true command--the
law--is to be found in the two sections taken together.
All this confusion arises from the fact that laws are not habitually
expressed in imperative terms. Even in a mature system like that of
England the great bulk of legal rules is hidden under forms which
disguise their imperative quality. They appear as principles, maxims,
propositions of fact, generalizations, points of pleading and procedure,
and so forth. Even in the statutes the imperative form is not uniformly
observed. It might be said that the more mature a legal system is the
less do its individual rules take the form of commands. The greater
portion of Roman law is expressed in terms which would not misbecome
scientific or speculative treatises. The institutional works abound in
propositions which have no legal significance at all, but which are not
distinguished from the true law in which they are embedded by any
difference in the forms of expression. Assertions about matters of
history, dubious speculations in philology, and reflections on human
conduct are mixed up in the same narrative with genuine rules of law.
Words of description are used, not words of command, and rules of law
assimilate themselves in form to the extraneous matter with which they
are mixed up.
It has been said that Austin himself admitted to some extent the force
of these objections. He includes among laws which are not imperative
"declaratory laws, or laws explaining the import of existing positive
law, and laws abrogating or repealing existing positive law." He thus
associates them with rules of positive morality and with laws which are
only metaphorically so called. This collocation is unfortunate and out
of keeping with Austin's method. Declaratory and repealing laws are as
completely unlike positive morality and metaphorical laws as are the
laws which he describes as properly so called. And if we avoid the error
of treating each separate proposition enunciated by the lawgiver as _a_
law, the cases in question need give us no trouble. Read the declaratory
and the repealing statutes along with the principal laws which they
affect, and the result is perfectly consistent with the proposition that
all law is to be resolved into a species of command. In the one case we
have in the principal taken together with the interpretative statute a
law, and whether it differs or not from the law as it existed before the
interpretative statute was passed makes no difference to the true
character of the latter. It contributes along with the former to the
expression of a command which is a true law. In the same way repealing
statutes are to be taken together with the laws which they repeal--the
result being that there is no law, no command, at all. It is wholly
unnecessary to class them as laws which are not truly imperative, or as
exceptions to the rule that laws are a species of commands. The
combination of the two sentences in which the lawgiver has expressed
himself, yields the result of silence--absence of law--which is in no
way incompatible with the assertion that a law, when it exists, is a
kind of command. Austin's theory does not logically require us to treat
every act of parliament as being a complete law in itself, and therefore
to set aside a certain number of acts of parliament as being exceptions
to the great generalization which is the basis of the whole system.
Rules of procedure again have been alleged to constitute another
exception. They cannot, it is said, be regarded as commands involving
punishment if they be disobeyed. Nor is anything gained by considering
them as commands addressed to the judge and other ministers of the law.
There may be no doubt in the law of procedure a great deal that is
resolvable into law in this sense, but the great bulk of it is to be
regarded like the rules of interpretation as entering into the
substantive commands which are laws. They are descriptions of the
sanction and its mode of working. The bare prohibition of murder without
any penalty to enforce it would not be a law. To prohibit it under
penalty of death implies a reference to the whole machinery of criminal
justice by which the penalty is enforced. Taken by themselves the rules
of procedure are not, any more than canons of interpretation, complete
laws in Austin's sense of the term. But they form part of the complete
expression of true laws. They imply a command, and they describe the
sanction and the mode in which it operates.
A more formidable criticism of Austin's position is that which attacks
the definition of sovereignty. There are countries, it is said, where
the sovereign authority cannot by any stretch of language be said to
command the laws, and yet where law manifestly exists. The ablest and
the most moderate statement of this view is given by Sir Henry Maine in
_Early History of Institutions_, p. 380:--
"It is from no special love of Indian examples that I take one from
India, but because it happens to be the most modern precedent in
point. My instance is the Indian province called the Punjaub, the
country of the Five Rivers, in the state in which it was for about a
quarter of a century before its annexation to the British Indian
Empire. After passing through every conceivable phase of anarchy and
dormant anarchy, it fell under the tolerably consolidated dominion of
a half-military half-religious oligarchy known as the Sikhs. The Sikhs
themselves were afterwards reduced to subjection by a single chieftain
belonging to their order, Runjeet Singh. At first sight there could be
no more perfect embodiment than Runjeet Singh of sovereignty as
conceived by Austin. He was absolutely despotic. Except occasionally
on his wild frontier he kept the most perfect order. He could have
commanded anything; the smallest disobedience to his commands would
have been followed by death or mutilation; and this was perfectly well
known to the enormous majority of his subjects. Yet I doubt whether
once in all his life he issued a command which Austin would call a
law. He took as his revenue a prodigious share of the produce of the
soil. He harried villages which recalcitrated at his exactions, and
he executed great numbers of men. He levied great armies; he had all
material of power, and he exercised it in various ways. But he never
made a law. The rules which regulated the lives of his subjects were
derived from their immemorial usages, and those rules were
administered by domestic tribunals in families or village
communities--that is, in groups no larger or little larger than those
to which the application of Austin's principles cannot be effected on
his own admission without absurdity."
So far as the mere size of the community is concerned, there is no
difficulty in applying the Austinian theory. In postulating a
considerably numerous community Austin was thinking evidently of small
isolated groups which could not without provoking a sense of the
ridiculous be termed nations. Two or three families, let us suppose,
occupying a small island, totally disconnected with any great power,
would not claim to be and would not be treated as an independent
political community. But it does not follow that Austin would have
regarded the village communities spoken of by Maine in the same light.
Here we have a great community, consisting of a vast number of small
communities, each independent of the other, and disconnected with all
the others, so far as the administration of anything like law is
concerned. Suppose in each case that the headman or council takes his
orders from Runjeet Singh, and enforces them, each in his own sphere,
relying as the last resort on the force at the disposal of the suzerain.
The mere size of the separate communities would make no sort of
difference to Austin's theory. He would probably regard the empire of
Runjeet Singh as divided into small districts--an assumption which
inverts no doubt the true historical order, the smaller group being
generally more ancient than the larger. But provided that the other
conditions prevail, the mere fact that the law is administered by local
tribunals for minute areas should make no difference to the theory. The
case described by Maine is that of the undoubted possession of supreme
power by a sovereign, coupled with the total absence of any attempt on
his part to _originate_ a law. That no doubt is, as we are told by the
same authority, "the type of all Oriental communities in their native
state during their rare intervals of peace and order." The empire was in
the main in each case a tax-gathering empire. The unalterable law of the
Medes and Persians was not a law at all but an occasional command. So
again Maine puts his position clearly in the following sentences: "The
Athenian assembly made true laws for residents on Attic territory, but
the dominion of Athens over her subject cities and islands was clearly a
tax-taking as distinguished from a legislating empire." Maine, it will
be observed, does not say that the sovereign assembly did not command
the laws in the subject islands--only that it did not legislate.
In the same category may be placed without much substantial difference
all the societies that have ever existed on the face of the earth
previous to the point at which _legislation_ becomes active. Maine is
undoubtedly right in connecting the theories of Bentham and Austin with
the overwhelming activity of legislatures in modern times. And formal
legislation, as he elsewhere shows, comes late in the history of most
legal systems. Law is generated in other ways, which seem irreconcilable
with anything like legislation. Not only the tax-gathering emperors of
the East, indifferent to the condition of their subjects, but even
actively benevolent governments have up to a certain point left the law
to grow by other means than formal enactments. What is _ex facie_ more
opposed to the idea of a sovereign's commands than the conception of
schools of law? Does it not "sting us with a sense of the ridiculous" to
hear principles which are the outcome of long debates between Proculians
and Sabinians described as commands of the emperor? How is sectarianism
in law possible if the sovereign's command is really all that is meant
by a law? No mental attitude is more common than that which regards law
as a natural product--discoverable by a diligent investigator, much in
the same way as the facts of science or the principles of mathematics.
The introductory portions of Justinian's _Institutes_ are certainly
written from this point of view, which may also be described without
much unfairness as the point of view of German jurisprudence. And yet
the English jurist who accepts Austin's postulate as true for the
English system of our own day would have no difficulty in applying it to
German or Roman law generated under the influence of such ideas as
these.
Again, referring to the instance of Runjeet Singh, Sir H. Maine says no
doubt rightly that "he never did or could have dreamed of changing the
civil rules under which his subjects lived. Probably he was as strong a
believer in the independent obligatory force of such rules as the elders
themselves who applied them." That too might be said with truth of
states to which the application of Austin's system would be far from
difficult. The sovereign body or person enforcing the rules by all the
ordinary methods of justice might conceivably believe that the rules
which he enforced had an obligatory authority of their own, just as most
lawyers at one time, and possibly some lawyers now, believe in the
natural obligatoriness, independently of courts or parliaments, of
portions of the law of England. But nevertheless, whatever ideas the
sovereign or his delegates might entertain as to "the independent
obligatory force" of the rules which they enforce, the fact that they do
enforce them distinguishes them from all other rules. Austin seizes upon
this peculiarity and fixes it as the determining characteristic of
positive law. When the rule is enforced by a sovereign authority as he
defines it, it is his command, even if he should never so regard it
himself, or should suppose himself to be unable to alter it in a single
particular.
It may be instructive to add to these examples of dubious cases one
taken from what is called ecclesiastical law. In so far as this has
not been adopted and enforced by the state, it would, on Austin's
theory, be, not positive law, but either positive morality or possibly
a portion of the Divine law. No jurist would deny that there is an
essential difference between so much of ecclesiastical law as is
adopted by the state and all the rest of it, and that for scientific
purposes this distinction ought to be recognized. How near this kind
of law approaches to the positive or political law may be seen from
the sanctions on which it depended. "The theory of penitential
discipline was this: that the church was an organized body with an
outward and visible form of government; that all who were outside her
boundaries were outside the means of divine grace; that she had a
command laid upon her, and authority given to her, to gather men into
her fellowship by the ceremony of baptism, but, as some of those who
were admitted proved unworthy of their calling, she also had the right
by the power of the keys to deprive them temporarily or absolutely of
the privilege of communion with her, and on their amendment to restore
them once more to church membership. On this power of exclusion and
restoration was founded the system of ecclesiastical discipline. It
was a purely spiritual jurisdiction. It obtained its hold over the
minds of men from the belief, universal in the Catholic church of the
early ages, that he who was expelled from her pale was expelled also
from the way of salvation, and that the sentence which was pronounced
by God's church on earth was ratified by Him in heaven." (Smith's
_Dictionary of Christian Antiquities_, art. "Penitence," p. 1587.)
These laws are not the laws of the jurists, though they resemble them
closely in many points--indeed in all points except that of the
sanction by which they are enforced. It is a spiritual not a political
sanction. The force which lies behind them is not that of the
sovereign or the state. When physical force is used to compel
obedience to the laws of the church they become positive laws. But so
long as the belief in future punishments or the fear of the purely
spiritual punishments of the church is sufficient to procure obedience
to them, they are to be regarded as commands, not by the state, but by
the church. That difference Austin makes essential. In rejecting
spiritual laws from the field of positive law his example would be
followed by jurists who would nevertheless include other laws, not
ecclesiastical in purpose, but enforced by very similar methods.
Austin's theory in the end comes to this, that true laws are in all
cases obeyed in consequence of the application of regulated physical
force by some portion of the community. That is a fair paraphrase of the
position that laws are the commands of the sovereign, and is perhaps
less objectionable inasmuch as it does not imply or suggest anything
about the forms in which laws are enunciated. All rules, customs,
practices and laws--or by whatever name these uniformities of human
conduct may be called--have either this kind of force at their back or
they have not. Is it worth while to make this difference the basis of a
scientific system or not? Apparently it is. If it were a question of
distinguishing between the law of the law courts and the laws of
fashion no one would hesitate. Why should laws or rules having no
support from any political authority be termed laws positive merely
because there are no other rules in the society having such support?
The question may perhaps be summed up as follows. Austin's definitions
are in strict accordance with the facts of government in civilized
states; and, as it is put by Maine, certain assumptions or postulates
having been made, the great majority of Austin's positions follow as of
course or by ordinary logical process. But at the other extreme end of
the scale of civilization are societies to which Austin himself refuses
to apply his system, and where, it would be conceded on all sides, there
is neither political community nor sovereign nor law--none of the facts
which jurisprudence assumes to exist. There is an intermediate stage of
society in which, while the rules of conduct might and generally would
be spoken of as laws, it is difficult to trace the connexion between
them and the sovereign authority whose existence is necessary to
Austin's system. Are such societies to be thrown out of account in
analytical jurisprudence, or is Austin's system to be regarded as only a
partial explanation of the field of true law, and his definitions good
only for the laws of a portion of the world? The true answer to this
question appears to be that when the rules in any given case are
habitually enforced by physical penalties, administered by a determinate
person or portion of the community, they should be regarded as positive
laws and the appropriate subject matter of jurisprudence. Rules which
are not so enforced, but are enforced in any other way, whether by what
is called public opinion, or spiritual apprehensions, or natural
instinct, are rightly excluded from that subject matter. In all stages
of society, savage or civilized, a large body of rules of conduct,
habitually obeyed, are nevertheless not enforced by any state sanction
of any kind. Austin's method assimilates such rules in primitive
society, where they subserve the same purpose as positive laws in an
advanced society, not to the positive laws which they resemble in
purpose but to the moral or other rules which they resemble in
operation. If we refuse to accept this position we must abandon the
attempt to frame a general definition of law and its dependent terms, or
we must content ourselves with saying that law is one thing in one state
of society and another thing in another. On the ground of clearness and
convenience Austin's method is, we believe, substantially right, but
none the less should the student of jurisprudence be on his guard
against such assumptions as that legislation is a universal phenomenon,
or that the relation of sovereign and subject is discernible in all
states of human society. And a careful examination of Maine's criticism
will show that it is devoted not so much to a rectification of Austin's
position as to correction of the misconceptions into which some of his
disciples may have fallen. It is a misconception of the analysis to
suppose that it involves a difference in juridical character between
custom not yet recognized by any judicial decision and custom after such
recognition. There is no such difference except in the case of what is
properly called "judicial legislation"--wherein an absolutely new rule
is added for the first time to the law. The recognition of a custom or
law is not necessarily the beginning of the custom or law. Where a
custom possesses the marks by which its legality is determined according
to well understood principles, the courts pronounce it to have been law
at the time of the happening of the facts as to which their jurisdiction
is invoked. The fact that no previous instance of its recognition by a
court of justice can be produced is not material. A lawyer before any
such decision was given would nevertheless pronounce the custom to be
law--with more or less hesitation according as the marks of a legal
custom were obvious or not. The character of the custom is not changed
when it is for the first time enforced by a court of justice, and hence
the language used by Maine must be understood in a very limited sense.
"Until customs are enforced by courts of justice"--so he puts the
position of Austin--they are merely "positive morality," rules enforced
by opinion; but as soon as courts of justice enforce them they become
commands of the sovereign, conveyed through the judges who are his
delegates or deputies. This proposition, on Austin's theory, would only
be true of customs as to which these marks were absent. It is of course
true that when a rule enforced only by opinion becomes for the first
time enforceable by a court of justice--which is the same thing as the
first time of its being actually enforced--its juridical character is
changed. It was positive morality; it is now law. So it is when that
which was before the opinion of the judge only becomes by his decision a
rule enforceable by courts of justice. It was not even positive morality
but the opinion of an individual; it is now law.
The most difficult of the common terms of law to define is _right_; and,
as right rather than duty is the basis of classification, it is a point
of some importance. Assuming the truth of the analysis above discussed,
we may go on to say that in the notion of law is involved an obligation
on the part of some one, or on the part of every one, to do or forbear
from doing. That obligation is duty; what is right? Dropping the
negative of forbearance, and taking duty to mean an obligation to do
something, with the alternative of punishment in default, we find that
duties are of two kinds. The thing to be done may have exclusive
reference to a determinate person or class of persons, on whose motion
or complaint the sovereign power will execute the punishment or sanction
on delinquents; or it may have no such reference, the thing being
commanded, and the punishment following on disobedience, without
reference to the wish or complaint of individuals. The last are absolute
duties, and the omission to do, or forbear from doing, the thing
specified in the command is in general what is meant by a crime. The
others are relative duties, each of them implying and relating to a
right in some one else. A person has a right who may in this way set in
operation the sanction provided by the state. In common thought and
speech, however, right appears as something a good deal more positive
and definite than this--as a power or faculty residing in individuals,
and suggesting not so much the relative obligation as the advantage or
enjoyment secured thereby to the person having the right. J. S. Mill, in
a valuable criticism of Austin, suggests that the definition should be
so modified as to introduce the element of "advantage to the person
exercising the right." But it is exceedingly difficult to frame a
positive definition of right which shall not introduce some term at
least as ambiguous as the word to be defined. T. E. Holland defines
right in general as a man's "capacity of influencing the acts of another
by means, not of his own strength, but of the opinion or the force of
society." Direct influence exercised by virtue of one's own strength,
physical or otherwise, over another's acts, is "might" as distinguished
from right. When the indirect influence is the opinion of society, we
have a "moral right." When it is the force exercised by the sovereign,
we have a legal right. It would be more easy, no doubt, to pick holes in
this definition than to frame a better one.[2]
The distinction between rights available against determinate persons and
rights available against all the world, _jura in personam_ and _jura in
rem_, is of fundamental importance. The phrases are borrowed from the
classical jurists, who used them originally to distinguish actions
according as they were brought to enforce a personal obligation or to
vindicate rights of property. The owner of property has a right to the
exclusive enjoyment thereof, which avails against all and sundry, but
not against one person more than another. The parties to a contract have
rights available against each other, and against no other persons. The
_jus in rem_ is the badge of property; the _jus in personam_ is a mere
personal claim.
That distinction in rights which appears in the division of law into the
law of persons and the law of things is thus stated by Austin. There are
certain rights and duties, with certain capacities and incapacities, by
which persons are determined to various classes. The rights, duties,
&c., are the condition or status of the person; and one person may be
invested with many status or conditions. The law of persons consists of
the rights, duties, &c., constituting conditions or status; the rest of
the law is the law of things. The separation is a mere matter of
convenience, but of convenience so great that the distinction is
universal. Thus any given right may be exercised by persons belonging to
innumerable classes. The person who has the right may be under
twenty-one years of age, may have been born in a foreign state, may have
been convicted of crime, may be a native of a particular county, or a
member of a particular profession or trade, &c.; and it might very well
happen, with reference to any given right, that, while persons in
general, under the circumstances of the case, would enjoy it in the same
way, a person belonging to any one of these classes would not. If
belonging to any one of those classes makes a difference not to one
right merely but to many, the class may conveniently be abstracted, and
the variations in rights and duties dependent thereon may be separately
treated under the law of persons. The personality recognized in the law
of persons is such as modifies indefinitely the legal relations into
which the individual clothed with the personality may enter.
T. E. Holland disapproves of the prominence given by Austin to this
distinction, instead of that between public and private law. This,
according to Holland, is based on the public or private character of the
persons with whom the right is connected, public persons being the state
or its delegates. Austin, holding that the state cannot be said to have
legal rights or duties, recognizes no such distinction. The term "public
law" he confines strictly to that portion of the law which is concerned
with political conditions, and which ought not to be opposed to the rest
of the law, but "ought to be inserted in the law of persons as one of
the limbs or members of that supplemental department."
Lastly, following Austin, the main division of the law of things is into
(1) primary rights with primary relative duties, (2) sanctioning rights
with sanctioning duties (relative or absolute). The former exist, as it
has been put, for their own sake, the latter for the sake of the former.
Rights and duties arise from facts and events; and facts or events which
are violations of rights and duties are _delicts_ or _injuries_. Rights
and duties which arise from delicts are remedial or sanctioning, their
object being to prevent the violation of rights which do not arise from
delicts.
There is much to be said for Frederic Harrison's view (first expressed
in the _Fortnightly Review_, vol. xxxi.), that the rearrangement of
English law on the basis of a scientific classification, whether
Austin's or any other, would not result in advantages at all
compensating for its difficulties. If anything like a real code were to
be attempted, the scientific classification would be the best; but in
the absence of that, and indeed in the absence of any habit on the part
of English lawyers of studying the system as a whole, the arrangement of
facts does not very much matter. It is essential, however, to the
abstract study of the principles of law. Scientific arrangement might
also be observed with advantage in treatises affecting to give a view of
the whole law, especially those which are meant for educational rather
than professional uses. As an example of the practical application of a
scientific system of classification to a complete body of law, we may
point to W. A. Hunter's elaborate _Exposition of Roman Law_ (1876).
It is impossible to present the conclusions of historical jurisprudence
in anything like the same shape as those which we have been discussing.
Under the heading JURISPRUDENCE, COMPARATIVE, an account will be found
of the method and results of what is practically a new science. The
inquiry is in that stage which is indicated in one way by describing it
as a philosophy. It resembles, and is indeed only part of, the study
which is described as the philosophy of history. Its chief interest has
been in the light which it has thrown upon rules of law and legal
institutions which had been and are generally contemplated as positive
facts merely, without reference to their history, or have been
associated historically with principles and institutions not really
connected with them.
The historical treatment of law displaces some very remarkable
misconceptions. Peculiarities and anomalies abound in every legal
system; and, as soon as laws become the special study of a professional
class, some mode of explaining or reconciling them will be resorted to.
One of the prehistorical ways of philosophizing about law was to account
for what wanted explanation by some theory about the origin of technical
words. This implied some previous study of words and their history, and
is an instance of the deep-seated and persistent tendency of the human
mind to identify names with the things they represent. The _Institutes_
of Justinian abound in explanations, founded on a supposed derivation of
some leading term. _Testamentum_, we are told, _ex eo appellatur quod
testatio mentis est_. A testament was no doubt, in effect, a declaration
of intention on the part of the testator when this was written. But the
-_mentum_ is a mere termination, and has nothing to do with _mens_ at
all. The history of testaments, which, it may be noted incidentally, has
been developed with conspicuous success, gives a totally different
meaning to the institution from that which was expressed by this
fanciful derivation. So the perplexing subject of _possessio_ was
supposed in some way to be explained by the derivation from _pono_ and
_sedeo_--_quasi sedibus positio_. _Posthumi_ was supposed to be a
compound of _post_ and _humus_. These examples belong to the class of
rationalizing derivations with which students of philosophy are
familiar. Their characteristic is that they are suggested by some
prominent feature of the thing as it then appeared to observers--which
feature thereupon becomes identified with the essence of the thing at
all times and places.
Another prehistorical mode of explaining law may be described as
metaphysical. It conceives of a rule or principle of law as existing by
virtue of some more general rule or principle in the nature of things.
Thus, in the English law of inheritance, until the passing of the
Inheritance Act 1833, an estate belonging to a deceased intestate would
pass to his uncle or aunt, to the exclusion of his father or other
lineal ancestor. This anomaly from an early time excited the curiosity
of lawyers, and the explanation accepted in the time of Bracton was that
it was an example of the general law of nature: "Descendit itaque jus
quasi ponderosum quid cadens deorsum recta linea vel transversali, et
nunquam reascendit ea via qua descendit." It has been suggested that the
"rule really results from the associations involved in the word
descent." It seems more likely, however, that these associations
explained rather than that they suggested the rule--that the omission of
the lineal ancestor existed in custom before it was discovered to be in
harmony with the law of nature. It would imply more influence than the
reasoning of lawyers is likely to have exercised over the development of
law at that time to believe that a purely artificial inference of this
kind should have established so very remarkable a rule. However that may
be, the explanation is typical of a way of looking at law which was
common enough before the dawn of the historical method. Minds capable of
reasoning in this way were, if possible, farther removed from the
conceptions implied in the reasoning of the analytical jurists than they
were from the historical method itself. In this connexion it may be
noticed that the great work of Blackstone marks an era in the
development of legal ideas in England. It was not merely the first, as
it still remains the only, adequate attempt to expound the leading
principles of the whole body of law, but it was distinctly inspired by a
rationalizing method. Blackstone tried not merely to express but to
illustrate legal rules, and he had a keen sense of the value of
historical illustrations. He worked of course with the materials at his
command. His manner and his work are obnoxious alike to the modern
jurist and to the modern historian. He is accused by the one of
perverting history, and by the other of confusing the law. But his
scheme is a great advance on anything that had been attempted before;
and, if his work has been prolific in popular fallacies, at all events
it enriched English literature by a conspectus of the law, in which the
logical connexion of its principles _inter se_, and its relations to
historical facts, were distinctly if erroneously recognized.
While the historical method has superseded the verbal and metaphysical
explanation of legal principles, it had apparently, in some cases, come
into conflict with the conclusions of the analytical school. The
difference between the two systems comes out most conspicuously in
relation to customs. There is an unavoidable break in the analytical
method between societies in which rules are backed by regulated physical
force and those in which no such force exists. At what point in its
development a given society passes into the condition of "an independent
political society" it may not be easy to determine, for the evidence is
obscure and conflicting. To the historical jurist there is no such
breach. The rule which in one stage of society is a law, in another
merely a rule of "positive morality," is the same thing to him
throughout. By the Irish Land Act 1881 the Ulster custom of tenant-right
and other analogous customs were legalized. For the purposes of
analytical jurisprudence there is no need to go beyond the act of
parliament. The laws known as the Ulster custom are laws solely in
virtue of the sovereign government. Between the law as it now is and the
custom as it existed before the act there is all the difference in the
world. To the historical jurist no such separation is possible. His
account of the law would not only be incomplete without embracing the
precedent custom, but the act which made the custom law is only one of
the facts, and by no means the most significant or important, in the
history of its development. An exactly parallel case is the legalization
in England of that customary tenant-right known as copyhold. It is to
the historical jurist exactly the same thing as the legalization of the
Ulster tenant right. In the one case a practice was made law by formal
legislation, and in the other without formal legislation. And there can
be very little doubt that in an earlier stage of society, when formal
legislation had not become the rule, the custom would have been
legalized relatively much sooner than it actually was.
Customs then are the same thing as laws to the historical jurist, and
his business is to trace the influences under which they have grown up,
flourished and decayed, their dependence on the intellectual and moral
conditions of society at different times, and their reaction upon them.
The recognized science--and such it may now be considered to be--with
which historical, or more properly comparative, jurisprudence has most
analogy is the science of language. Laws and customs are to the one what
words are to the other, and each separate municipal system has its
analogue in a language. Legal systems are related together like
languages and dialects, and the investigation in both cases brings us
back at last to the meagre and obscure records of savage custom and
speech. A great master of the science of language (Max Müller) has
indeed distinguished it from jurisprudence, as belonging to a totally
different class of sciences. "It is perfectly true," he says, "that if
language be the work of man in the same sense in which a statue, or a
temple, or a poem, or a law are properly called the works of man, the
science of language would have to be classed as an historical science.
We should have a history of language as we have a history of art, of
poetry and of jurisprudence; but we could not claim for it a place side
by side with the various branches of natural history." Whatever be the
proper position of either philology or jurisprudence in relation to the
natural sciences, it would not be difficult to show that laws and
customs on the whole are equally independent of the efforts of
individual human wills--which appears to be what is meant by language
not being the work of man. The most complete acceptance of Austin's
theory that law everywhere and always is the command of the sovereign
does not involve any withdrawal of laws from the domain of natural
science, does not in the least interfere with the scientific study of
their affinities and relationships. Max Müller elsewhere illustrates his
conception of the different relations of words and laws to the
individual will by the story of the emperor Tiberius, who was reproved
for a grammatical mistake by Marcellus, whereupon Capito, another
grammarian, observed that, if what the emperor said was not good Latin,
it would soon be so. "Capito," said Marcellus, "is a liar; for, Caesar,
thou canst give the Roman citizenship to men, but not to words." The
mere impulse of a single mind, even that of a Roman emperor, however,
probably counts for little more in law than it does in language. Even in
language one powerful intellect or one influential academy may, by its
own decree, give a bent to modes of speech which they would not
otherwise have taken. But whether law or language be conventional or
natural is really an obsolete question, and the difference between
historical and natural sciences in the last result is one of names.
The application of the historical method to law has not resulted in
anything like the discoveries which have made comparative philology a
science. There is no Grimm's law for jurisprudence; but something has
been done in that direction by the discovery of the analogous processes
and principles which underlie legal systems having no external
resemblance to each other. But the historical method has been applied
with special success to a single system--the Roman law. The Roman law
presents itself to the historical student in two different aspects. It
is, regarded as the law of the Roman Republic and Empire, a system whose
history can be traced throughout a great part of its duration with
certainty, and in parts with great detail. It is, moreover, a body of
rationalized legal principles which may be considered apart from the
state system in which they were developed, and which have, in fact,
entered into the jurisprudence of the whole of modern Europe on the
strength of their own abstract authority--so much so that the continued
existence of the civil law, after the fall of the Empire, is entitled to
be considered one of the first discoveries of the historical method.
Alike, therefore, in its original history, as the law of the Roman
state, and as the source from which the fundamental principles of modern
laws have been taken, the Roman law presented the most obvious and
attractive subject of historical study. An immense impulse was given to
the history of Roman law by the discovery of the _Institutes_ of Gaius
in 1816. A complete view of Roman law, as it existed three centuries and
a half before Justinian, was then obtained, and as the later
_Institutes_ were, in point of form, a recension of those of Gaius, the
comparison of the two stages in legal history was at once easy and
fruitful. Moreover, Gaius dealt with antiquities of the law which had
become obsolete in the time of Justinian, and were passed over by him
without notice.
Nowhere did Roman law in its modern aspect give a stronger impulse to
the study of legal history than in Germany. The historical school of
German jurists led the reaction of national sentiment against the
proposals for a general code made by Thibaut. They were accused by their
opponents of setting up the law of past times as intrinsically entitled
to be observed, and they were no doubt strongly inspired by reverence
for customs and traditions. Through the examination of their own
customary laws, and through the elimination and separate study of the
Roman element therein, they were led to form general views of the
history of legal principles. In the hands of Savigny, the greatest
master of the school, the historical theory was developed into a
universal philosophy of law, covering the ground which we should assign
separately to jurisprudence, analytical and historical, and to theories
of legislation. There is not in Savigny's system the faintest approach
to the Austinian analysis. The range of it is not the analysis of law as
a command, but that of a _Rechtsverhältniss_ or legal relation. Far from
regarding law as the creation of the will of individuals, he maintains
it to be the natural outcome of the consciousness of the people, like
their social habits or their language. And he assimilates changes in law
to changes in language. "As in the life of individual men no moment of
complete stillness is experienced, but a constant organic development,
such also is the case in the life of nations, and in every individual
element in which this collective life consists; so we find in language a
constant formation and development, and in the same way in law." German
jurisprudence is darkened by metaphysical thought, and weakened, as we
believe, by defective analysis of positive law. But its conception of
laws is exceedingly favourable to the growth of a historical philosophy,
the results of which have a value of their own, apart altogether from
the character of the first principles. Such, for instance, is Savigny's
famous examination of the law of possession.
There is only one other system of law which is worthy of being placed by
the side of Roman law, and that is the law of England. No other European
system can be compared with that which is the origin and substratum of
them all; but England, as it happens, is isolated in jurisprudence. She
has solved her legal problems for herself. Whatever element of Roman law
may exist in the English system has come in, whether by conscious
adaptation or otherwise, _ab extra_; it is not of the essence of the
system, nor does it form a large portion of the system. And, while
English law is thus historically independent of Roman law, it is in all
respects worthy of being associated with it on its own merits. Its
originality, or, if the phrase be preferred, its peculiarity, is not
more remarkable than the intellectual qualities which have gone to its
formation--the ingenuity, the rigid logic, the reasonableness, of the
generations of lawyers and judges who have built it up. This may seem
extravagant praise for a legal system, the faults of which are and
always have been matter of daily complaint, but it would be endorsed by
all unprejudiced students. What men complain of is the practical
hardship and inconvenience of some rule or process of law. They know,
for example, that the law of real property is exceedingly complicated,
and that, among other things, it makes the conveyance of land expensive.
But the technical law of real property, which rests to this day on ideas
that have been buried for centuries, has nevertheless the qualities we
have named. So too with the law of procedure as it existed under the
"science" of special pleading. The greatest practical law reformer, and
the severest critic of existing systems that has ever appeared in any
age or country, Jeremy Bentham, has admitted this: "Confused,
indeterminate, inadequate, ill-adapted, and inconsistent as to a vast
extent the provision or no provision would be found to be that has been
made by it for the various cases that have happened to present
themselves for decision, yet in the character of a repository of such
cases it affords, for the manufactory of real law, a stock of materials
which is beyond all price. Traverse the whole continent of Europe,
ransack all the libraries belonging to all the jurisprudential systems
of the several political states, add the contents together, you would
not be able to compose a collection of cases equal in variety, in
amplitude, in clearness of statement--in a word, all points taken
together, in constructiveness--to that which may be seen to be afforded
by the collection of English reports of adjudged cases" (Bentham's
_Works_, iv. 460). On the other hand, the fortunes of English
jurisprudence are not unworthy of comparison even with the catholic
position of Roman law. In the United States of America, in India, and in
the vast Colonial Empire, the common law of England constitutes most of
the legal system in actual use, or is gradually being superimposed upon
it. It would hardly be too much to say that English law of indigenous
growth, and Roman law, between them govern the legal relations of the
whole civilized world. Nor has the influence of the former on the
intellectual habits and the ideas of men been much if at all inferior.
Those who set any store by the analytical jurisprudence of the school of
Austin will be glad to acknowledge that it is pure outcome of English
law. Sir Henry Maine associated its rise with the activity of modern
legislatures, which is of course a characteristic of the societies in
which English laws prevail. And it would not be difficult to show that
the germs of Austin's principles are to be found in legal writers who
never dreamed of analysing a law. It is certainly remarkable, at all
events, that the acceptance of Austin's system is as yet confined
strictly to the domain of English law. Maine found no trace of its being
even known to the jurists of the Continent, and it would appear that it
has been equally without influence in Scotland, which, like the
continent of Europe, is essentially Roman in the fundamental elements of
its jurisprudence.
The substance of the above article is repeated from Professor E.
Robertson's (Lord Lochee's) article "Law," in the 9th ed. of this
work.
Among numerous English textbooks, those specially worth mention are:
T. E. Holland, _The Elements of Jurisprudence_ (1880; 10th ed., 1906);
J. Austin, _Lectures on Jurisprudence_ (4th ed., 1873); W. Jethro
Brown, _The Austinian Theory of Law_ (1906); Sir F. Pollock, _A First
Book on Jurisprudence_ (1896; 2nd ed., 1904).