either in the original Roman texts, or in those modern books wherein the
scattered rules and maxims of the ancient jurists have been rearranged
in systematic form. In the proem and introductory title of Justinian’s
_Institutes_ and in the first few titles of his _Digest_ may be found
some few dicta, more sonorous than exact, about Justice and Nature and
the origin of law. Nothing more in the _Corpus Iuris_ nor in any other
of the few old legal writings that have survived. There is no trace that
any lawyer ever composed a treatise on that which we in England call
General Jurisprudence, and which the Germans call Rechtsphilosophie or
Naturrecht (Philosophie de Droit, Droit Naturel). Cicero, who at one
time intended to write a book on the civil law, throws out some remarks
on the subject, but these are rather philosophical than legal, and it
would seem either that no later philosopher, whether Greek or Roman,
whether Academic or Stoic, followed in this path, or else that the
treatises of those who did were not thought worthy of being preserved,
or even of being quoted by the compilers of Justinian’s _Digest_ .
This absence of what the enlightened modern layman, though certainly not
the professional English lawyer, expects in a refined and comprehensive
system of jurisprudence, raises the question which those who approach
the study of law, especially in a university, doubtless often put to
themselves—Has the Roman law suffered from the want of a foundation of
legal philosophy, or is that foundation really needless, and can a
practically useful and scientifically symmetrical system of law exist
without it?
In order to answer this question let us consider what is meant by the
Philosophy of Law, or the Science of Law in general, conceptions to
which it might be convenient to restrict the terms Jurisprudence (or
General Jurisprudence) hitherto somewhat laxly used[86], and what are
the proper relations of such a science on the one hand to a working
system of law, and on the other hand to the principles and
considerations which guide the legislator.
-----
Footnote 86:
As has been proposed by Dr. Holland in his admirable _Elements of
Jurisprudence_ .
-----
Seeing that in each of the so-called moral or social or political
sciences the essential characteristic is its method, and that it is by
its possession of a method that its claims to be a science must be
tried, we had better begin by inquiring what method or methods the
science of law in general recognizes and applies; and whether, if there
be more than one, any one of these is entitled to be deemed the right
method. As law is a science directed to practice, the test of rightness
will evidently be the practical utility of the method in producing a
system of law which shall be symmetrical, harmonious, and suited to the
needs of the people whose social relations it has to adjust and
regulate.
Four methods are commonly spoken of as employed in legal science, being
the following:—
The Metaphysical or _a priori_ method.
The Analytic method.
The Historical method.
The Comparative method.
This classification is doubtless open to criticism, but being in actual
use, it may serve our present needs.
The Metaphysical method, which, without stopping to search for a
definition, we may describe as being the method which most German,
French, and Italian writers on the Philosophy of Law or the ‘Law of
Nature’ have adopted, begins by investigating the abstract ideas of
Right and Law in their relation to Morality, Freedom, and the human Will
generally. It may thus be regarded as that branch of metaphysics, of
psychology, of ethics, perhaps also of natural theology (according to
the delimitation of these departments of inquiry which any one may
adopt), which concerns itself with the civil relations of men to one
another in the most general and abstract form of those relations. It
proceeds to deal with the fundamental legal conceptions or categories of
the subject, such as Sovereignty, Obedience, Right, Claim, Duty, Injury,
Liability, and with the notions involved in certain fundamental and
universal legal institutions such as the Family, Property, Inheritance,
Marriage, Contract, in each case endeavouring to discover the ethical or
psychological basis of the conception or institution, and to build up
the institution in its simplicity, purity, and perfection on that basis,
determining the form which it ought to take—that is to say, which God or
Nature designed it to take—in conformity to its essence and indwelling
creative principle. In the language of Plato, it seeks to discover and
describe the Idea (εἶδος) of the conception or institution. In
particular, this method treats the notion of Right from all possible
sides, connecting it with the Deity, with nature in general, with man’s
nature, with the family, with the primordial social and political
relations of men, and endeavours in like manner to determine the
conception of Duty and the essence of Moral Obligation, and the reasons
why Obligation attaches to certain human relations, whether it springs
out of these relations, _e.g._ out of those of the Family, or whether,
coming from some other source, it gives to them a new moral quality.
With certain philosophers the method extends itself to politics, and
discusses questions some of which hardly belong to the legal sphere,
_e.g._ the rights of majorities as against minorities; the grounds on
which a ruler may demand submission, or those on which subjects may
properly resist or depose a ruler; the relations of civil authority to
ecclesiastical authority, and the limits within which, in case of
conflict, obedience is due to one or to the other, perhaps even the
limits within which the legislator may fitly enforce duties primarily
moral.
The writers who have followed this method may be divided into two
classes. Some remain in the field of abstractions. Positing a few
extremely general ideas or principles, they develop out of these by way
of deduction or explication the rest of their doctrine down to such
legal details, usually scanty, as they condescend to give. The whole
system is, or seems to be, spun out of the author’s fundamental
conceptions. Others, while using abstract terms with equal boldness,
turn out when closely scrutinized to have really drawn their notions
from the concrete, and to be merely generalizing from phenomena, more or
less numerous, which they have seen or heard or read of. Obviously, even
the more professedly abstract writers of the former class do in fact
found themselves largely, often more largely than they fancy, upon
observation, for this no man can help doing, however much he may prefer
the ‘high _priori_ road.’ There is, however, a marked difference between
the way in which this method is handled by different types of thinkers.
Some soar so high through the empyrean of metaphysics that it is hard to
connect their speculations with any concrete system at all. Others
flutter along so near the solid earth of positive law that we can (so to
speak) see them perching on the stones, and discover the view they take
of the questions with which the practical lawyer or legislator has to
deal.
The worth of the books, abundant on the Continent of Europe but scarce
in England and the United States (though a little less scarce in
Scotland), which have been composed by writers of this school, will be
estimated differently by those who enjoy speculation for its own sake,
and by those who think it a waste of time unless it bears fruit in
truths of definite practical utility. If the latter criterion of value
be accepted, the importance of these treatises cannot be placed very
high. The foliage is luxuriant, but the fruit scanty. A vigorous and
ingenious mind will doubtless, in whatever way he may treat the subject,
stimulate thought in the student, and will probably throw out just and
suggestive remarks which may be treasured up as practically helpful. As
some brilliant thinkers, at the head of whom stand Immanuel Kant and G.
W. F. Hegel, have adopted this method in handling the Philosophy of Law,
and have given a powerful impulse to many able disciples, it would be
foolish and presumptuous to disparage their treatises. Nevertheless, the
general conclusion of English lawyers has been that not much can be
gathered from lucubrations of this type. They are decidedly hard
reading; and the harvest reaped is small in proportion to the time
spent. Threading its way through, or, as some would say, playing at
hide-and-seek in, a forest of shadowy abstractions, this method keeps
too far away from the field of concrete law to throw much light on the
difficulties and controversies which the student of any given system
encounters. Nevertheless, while this is the general character of the
school, there are some books referable to it wherein one finds legal
conceptions analysed with an acuteness which cannot but sharpen the
reader’s wits, and others which pile up much ingenious and subtle
thinking round the points where law and ethics come into contact, some
legal problems being really ethical problems also. Even a student who
has experienced many disappointments will not lightly abandon the hope
that some lawyer with a gift for speculation will one day employ this
method—in itself a method with legitimate claims to respect—to produce a
book nearer to the realities of the subject than any which the last two
centuries have seen. There is more to be expected from such a man than
from a metaphysician who thinks he understands law. Higher and rarer
gifts are no doubt needed for metaphysics than for law; indeed even high
poetic genius is not so rare as a really original genius for
speculation. But the lawyer who rises into metaphysics has at any rate
his body of practical knowledge to keep him in the path of sense: the
metaphysician dealing with law may easily lose himself in mere words.
The Analytic Method, standing in a marked and sometimes a scornful
opposition to the method we have been considering, leaves metaphysics
and ethics on one side, and starts from the concrete, that is to say,
from the actual facts of law as it sees them to-day. It takes the terms,
whether popular or technical, which are in current use. It endeavours to
define these terms, to classify them, to explain their connotation, to
show their relation to one another. It is of course frequently obliged,
when it attempts, as it must attempt, to be logical, to modify the
existing terminology, and attach a new specific and technical sense of
its own to some words, or even to invent terms altogether new.
This method, though it is essentially, in its more obvious and
rudimentary form, so much a matter of common sense as to have been more
or less employed by all who have thought or written about law, and may
possibly have been used in Egypt under the Fourth Dynasty, is most
familiar to us as that employed with boldness and spirit by Jeremy
Bentham, and subsequently proclaimed by the school he founded to be the
only helpful mode of handling the subject. That school rendered a
service to legal study in England by the keen east wind of criticism
which they unloosed to play upon our law, and which ended by uprooting a
good many old and probably rotten trees. They roused an interest in the
discussion of general legal doctrines which had been wanting during the
first three quarters of last century. But they fell into two grave
errors.
They laid the foundations of legal science in the so-called Theory of
Utility, which, be it sound or unsound, has nothing to do with the
Analytic Method, nor with Positive Law. In the first place, it is a
theory of human action which properly belongs to ethics or psychology;
and secondly, in so far as it can be deemed to affect law, it affects
neither the classification and exposition, nor the application of law
(except in so far as it may subserve interpretation), but the making of
law. That is to say, it belongs not to the jurist but to the legislator.
Its place is that of a practical guide to the science we call the
Principles of Legislation. But in this application it is no new
discovery, for all legislators have at all times professed, and many
have honestly sought, to be guided by it. Expediency, to use the older
and less formal term, is a principle obvious in legislation and
dangerous in law, for though the commentator may properly use it, the
judge may readily abuse it. That Bentham, who was first and foremost a
reformer, should incessantly insist on the doctrine of utility, till he
almost crushed his legal analysis under the weight of his ethical
theory, was perhaps natural. He was really trying to create a Theory of
Legislation. But John Austin, the most prominent of his professional
disciples, was a writer on law rather than a reformer, so in him the
fault is less excusable. Indeed, Austin pushed the habit further, for he
must needs, after basing Law on Utility, identify Utility with the Law
of God, in doing which he wanders off into the field of Natural
Theology, and virtually repeats the error, which he had censured in the
Roman lawyers, of assuming a Law of Nature as the basis of legal
doctrines. So that Bentham and he are not unjustly described by the
Germans as the authors of ‘theories of Natural Law.’
The second error of this school was that of relying too much upon
current English notions and terms. They did not extend their view far
enough either into the past, or over the legal systems of other times
and countries. Bentham was, to be sure, chiefly occupied with schemes of
reform, and did not profess to be a jurist. Austin deserves credit for
having gone to Roman law, and sought in it those general ideas in which
he found, or thought he found, English law lacking. Unfortunately he did
not fully master the Roman system; and his overweening self-confidence
betrayed him into a dogmatic censoriousness which was unbecoming even
when he was exposing the errors of Blackstone, and was still less
pardonable when he poured scorn on the legal luminaries of Rome. He did
not perceive how deep some of the difficulties of legal theory lie, nor
that there are some conceptions which it is safer to describe than to
attempt to define. Hence his solutions are sometimes crude, and his
efforts, in themselves most laudable, after exactitude, are apt to fail
for want of subtlety. On several fundamental questions, such as the
origin and essence of law and the nature of sovereignty, Austin is
palpably wrong, and the most eminent of those later writers who started
as his disciples have been largely occupied in disclaiming and
correcting his mistakes.
The really great merit of the English Analytic School—a merit which was
no doubt the main source of its influence, but which we are now in some
danger of forgetting—was its destructive energy. When Bentham began his
career, case law, which reigned supreme, was by the legal profession
generally, though of course not by such a man as Lord Mansfield,
regarded as a mere string of precedents. No idea of philosophical
arrangement, much less of literary finish, had begun to work upon the
mass—
‘Quum neque Musarum scopulos quisquam superarat,
Nec dicti studiosus erat.’
Blackstone had indeed rendered the immense service of presenting within
moderate compass and in graceful diction a complete view of the law. But
he brought an insufficient grasp of history and philosophical principle,
and still less an exact analysis, to his exposition, finding little to
criticize and nothing to require amendment in rules and a procedure
which half a century later few ventured to justify. This genial
optimism, which was satisfied with any explanation, because it took the
law as it stood to be the best possible, provoked Bentham. He writes
with the air of one who does well to be angry; and the tradition
descended to Austin, by whose time the grosser scandals of the law were
beginning to be removed.
Between Bentham and Austin there is one conspicuous difference[87].
Bentham had not only a vigorous but a fertile and inventive mind, acute
and ingenious, if sometimes warped or liable to become what is now
called ‘cranky.’ He drops plenty of good things as he goes along. Austin
is barren. Few or no suggestive thoughts are to be gathered where he has
passed. His dry, persistent iteration, with its honest struggle after
precision of terms, has a certain value as a mental discipline, just as
it tests one’s powers of endurance to traverse a stony and waterless
desert. An old Scottish lady consoled her friend, who had been dragged
two miles in a broken carriage by runaway horses, with the remark that
it must have been a precious experience. But it is generally better to
get one’s discipline from books which also yield profitable knowledge.
Of this there is in Austin nothing which may not nowadays be found
better stated elsewhere. Most recent authorities are now agreed that his
contributions to juristic science are really so scanty, and so much
entangled with error, that his book ought no longer to find a place
among those prescribed for students.
-----
Footnote 87:
Some excellent remarks on the intellectual characteristics of Bentham
may be found in Mr. Leslie Stephen’s _English Utilitarians_, vol. i
(1901).
-----
How then, it may be asked, did it happen that Bentham and even Austin
made a great impression upon some powerful minds in the last generation?
Bentham did, because he was the first man who had the courage to
denounce the artificialities, absurdities, and injustices of the
unreformed law and procedure of England. No small part of the credit for
the reforms which Romilly, Brougham, and their fellow workers carried
out belongs to the man who had begun to call for them full thirty years
before. Austin did, because in his time systematic legal study, and in
particular legal education, were almost extinct in England. There was no
legal teaching either in the old Universities, or in London. Though the
grosser abuses of procedure had been removed, yet the subtleties of
special pleading, as well as the long-winded and highly artificial
intricacies of conveyancing, still flourished, and the law was regarded
as a forest of details through which it was useless, even if possible,
to drive paths for the student to follow. A disciple of the old reformer
who brought to the novel enterprise of teaching and systematizing law a
faith in the reformer’s doctrines and a zeal for general principles, not
unnaturally received the sympathy and the deference of the eager youth
who believed, and rightly believed, that the practice of the law, as
well as its substance, would gain from the application of an independent
and fearless criticism to it. By this service Austin has earned our
gratitude, and deserves to be remembered with respect. So, though the
legal writings of Bentham and his disciples have now only a historical
interest, we must not forget that they stimulated men to handle law in a
new spirit, and that those whom they influenced had much to do with the
establishment of the modern schools of law and the introduction of new
methods of preparation for professional work.
The third method is the Historical. Instead of taking law as a datum,
like the two other previous methods, it seeks to find how law sprang up
and grew to be what it is. It sees in law a product of time, the germ of
which, like the germ of the State, exists in the nature of man as a
being made for society, and which develops from this germ in various
forms according to the environing influences which play upon it.
Although law may not have been created by the State, it tends as it
grows to become more and more closely associated with the State as a
function of the latter’s energy. Though its leading doctrines and its
fundamental institutions are in some respects essentially the same in
all civilized communities, still every given system is, in the
historian’s view, for ever changing, growing, and decaying, both in its
theory and in its substance, _i.e._ both in the ideas which create and
underlie the legal conceptions and rules, and in the particular forms
which those rules have assumed no less than in the institutions by which
such rules are put in force.
The utilities of the Historical Method as applied to any given system of
law are two.
It explains many conceptions, doctrines, and rules which no abstract
theory or logical analysis can explain, because they issue, not from
general human reason and the nature of things, but from special
conditions in the country or people where the law in question arose. All
law is a compromise between the past and the present, between tradition
and convenience. Hence pure analysis, since it deals with the present
only, can never fully explain any legal system.
This is not to say that the Historical method is a mere record of
accidents. On the contrary it endeavours to eliminate, or at least to
reduce to due proportions, that element of accident which results from
the personal fancies and arbitrary volition of individual lawgivers. It
conceives of national character and the circumstances of national growth
as creative forces, whereof law is the efflux and expression, being
itself a living organism, which in its turn helps to shape the mind of
the people. Accordingly it shows that each nation, rather than
individual men, however potent, is, through what the Germans call its
Legal Consciousness (_Rechtsbewusstsein_) the maker and moulder of its
law.
A second merit of this method is that of indicating that the conceptions
and rules which prevail at any given time, however obviously reasonable
and useful they may appear to the generation now living, will not always
appear so, but must undergo the same change and decay which previous
rules have experienced. It teaches us never to condemn the past because
it is not the present, nor ever to forget when we praise the present
that it too will some day be the past. This is one of those truisms
which men are always forgetting to apply, and of which legislators in
particular need to be often reminded.
The risk principally incidental to the Historical method is, that it is
apt to lapse, either into mere antiquarianism on the one side, or into
general political and social history on the other. Some charge it with
retarding improvement by justifying the past. Those who oppose reforms
have often so abused it: just as those abuse it who when they palliate
crimes by dwelling on the ‘so-called conditions of the age’ attenuate
all moral distinctions. ‘In judging Phalaris,’ a modern lecturer is
reported to have said, ‘we must not forget that the moral standard of
Phalaris’ time is not that of our own.’ Nevertheless History, when she
explains and is supposed to justify the past, justifies it as the past,
and must not be deemed to defend it for the purposes of the present.
It is, however, a weak point in the Historical method as applied to the
science or philosophy of law that it is more applicable to the law of
any particular country than to the theory of law in general, for the
details of legal history vary so much in different countries that
immense knowledge and unusual architectonic power are needed to combine
their general results for the purposes of a comprehensive theory.
Indeed, I doubt if any man of the requisite capacity (unless perhaps
Rudolf von Ihering) has yet produced a treatise on jurisprudence or the
philosophy of law by means of this method. The thing, however, may be
done, and so will doubtless be done some day. Everything happens at
last.