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THE NATURE OF POSITIVE LAW


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THE
NATURE OF POSITIVE LAW
BY
JOHN M. LIGHTWOOD, M.A.
FELLOW OF TRINITY HALL, CAMBRIDGE, AND OF LINCOLN'S INN, BARRISTER-AT-LAW
immlmn
MACMILLAN ‘AND CO.
1883
Printed 6y R. 8: R. CLARK, Edinburgh.
TO
MY FATHER
PREFACE.
IT has now in several ways become evident that the
idea of Law upon which Austin founded his system
of Jurisprudence cannot be accepted as final, but
must be treated as only a ﬁrst approximation, valu-
able indeed, but defective, and therefore requiring to
be supplemented by further enquiry. I was myself
led to this opinion by discovering that the Austinian
analysis threw so little light upon the real nature of
legal Rights as to be of comparatively small value in
investigating their substance as opposed to their mere
enforcement. This View was pressed upon me again
and again as I examined the various Rights of pro-
perty, and I believe the current system breaks down
entirely when we attempt to explain by it the Roman
theory of Possession. Being thus led to distrust the
results which I had long accepted as ﬁnal, I found
that there were two ways of attempting to correct
themi—the historical and the analytical. The former
way reveals to us the actual manner in which the
various elements of Law have come into existence,
and if we compare the results which have been at- A
tained by different Jurists on the latter system, we
discover the various aspects of Law that have from
viii PREFACE.
time to time forced themselves on the notice of the
legal philosopher. Each of these methods fortunately
can be easily employed at the present time. The
researches of Sir Henry Maine upon the early history
of Law, and the luminous sketch of the rise of Roman
Law which we have received from von Ihering of
Vienna, enable us to grasp the different elements of
Law in their very origin; while the theories of Law
which have been quite recently elaborated in Ger-
many enable us, by an actual comparison, to correct
the deﬁciencies of Austin. These remarks show the
general design and method of the present volume.
The early, or historical, part contains enough to jus-
tify also a re-examination of the analysis of a legal
Right, but the length to which the later part has gone
in the discussion of the nature of Law, prevented
my carrying the enquiry so far at present.
I wish to express the obligation which I am under
to the two distinguished J urists above mentioned,
and if I have not always accepted the whole of their
conclusions, it is because I preferred to follow the spirit
rather than the letter of their teaching. The position
which each occupies in the development of legal philo-
sophy is very interesting. Sir Henry Maine, as is
well known, has brought forward historical facts to
show that Austin’s system is not of universal applica-
tion, yet he accepts it as a good working theory for
the legal systems of modern times. Germany, too,
has had its historical school succeeding an analytical
one, but with this difference, that the former was
not content merely to apply corrections to the old
PREFACE. iX
analysis, but started a new theory of its own. The
opposition of the two is typiﬁed by the contention
between Thibaut and Savigny at the beginning of
the present century. But in speaking of Savigny as
the founder of a historical school, we must remember
that his views upon the origin of Law were little
more than conjecture, hence it was to be expected
that the next Jurist who was capable of independent
thought would reject them. This, indeed, Ihering
has done; he returns to the old lines, establishes Law
on Force, and reconstructs a system equivalent to
that of Austin. It is to be noticed, however, that he
carries his results a stage further, and includes in his
idea of Law the limitation of the Sovereign power.
With all this before us then, it is impossible to be
content to rest ﬁnally in Austin’s conclusions. The
View of Law which Savigny and Puchta adopted, and
which was sharply repudiated by Ihering, has received
unexpected conﬁrmation from the works of Sir Henry
Maine, and the analysis of Ihering himself has led him,
upon other grounds, to a point which is far in advance of
Austin. That I have adequately employed the mate-
rial thus placed at my disposal, I cannot say ; it must
be sufﬁcient if I have done something to emphasise
the defects of the current system, and to make the way
easier for subsequent enquirers. It will be seen that
I lay claim to no originality in the views I maintain.
Some of them, indeed, seemed at one time to be my
own, but wider reading has shown that they rest on
better authority than any that I could give them,
and to their proper authors I have gladly referred
X PREFACE.
them. This will be evident in the course of the
work; and there is only one point which I need spe-
cially mention here. I have tried to show that there
exist sufiicient historical reasons for the different views
on Law which have prevailed in Germany and in Eng-
land. This idea I for some time thought to be my
own, until, on referring to some notes which I took of
Prof. Pollock’s introductory lecture last October at
University College, London, I found that, however
unconsciously I had retained it, it must have been
originally suggested by him. I am glad, therefore,
to make this acknowledgment to a writer who has
shown how happily practical sense and humorous
criticism can be combined in the treatment of Law.
In conclusion, I may say that perhaps hardly any
idea of Law is likely to be accepted by ‘all students;
it is sufficient if each aspect is from time to time
brought prominently forward, and so made to influ-
ence actual conduct. In the complication of human
affairs it is enough for us to give every view proper
expression and representation ; the blending of them is
effected, and the ﬁnal result worked into the his-
tory of the race, by forces which are beyond human
control. '
Soon after I wrote the above, and when the
following pages were already in the publisher’s hands,
there appeared Professor Clark’s work on “ Practical
Jurisprudence.” The view of Law which he. has
propounded is in some respects so similar to the one
adopted here, that I was at ﬁrst in some little diﬁi-
PREFACE. xi
culty as to the proper course for me to take. Had
that work, indeed, been published a few weeks earlier,
I should have thought it necessary either to withdraw
or/at least to make extensive alterations in my own ;
as it was, I at once communicated with Professor
Clark, and I have to thank him for the ready courtesy
with which he recognised the independence of our
investigations and left me at liberty to act as I thought
ﬁt. Perhaps, then, this explanation will be enough
to account for any coincidences between the two
works that may be observed, and it will be easily
seen that if our results are occasionally the same, the '
methods I have employed are but too clearly my own.
CONTENTS.
CHAPTER I.
J URISPRUDENCE As A SCIENCE
CHAPTER II.
LAW AND EQUITY
CHAPTER III.
THE INDUCTIONS OF J URISPRUDENCE .
CHAPTER IV.
THE INFLUENCE or POPULAR IDEAS ON J URISPRUDENCE
CHAPTER V.
PRIMITIVE SOCIETY
CHAPTER VI.
THE LEGAL AsPEoT OF THE VILLAGE COMMUNITY
CHAPTER VII.
THE ORIGIN OF PRIVATE RIGHTS
PAGE
25
36
63
85
.- 133
XIV CONTENTS.
CHAPTER VIII.
THE PROTECTION or‘ PRIVATE RIGHTs .
CHAPTER IX.
THE J URISDICTION OF THE PONTIFFS .
CHAPTER X.
THE REGULATION OF RIGHTS .
CHAPTER XI.
MODERN THEORIES OF LAW
CHAPTER XII.
THE MODERN GERMAN Sermon on J URISPRUDENCE
CHAPTER XIII.
THE ENGLISH SCHOOL or‘ J uRIsPRUDENcE
CHAPTER XIV.
LAW AND MORALITY .
CHAPTER XV.
THE SoURcEs OF LAW
PAGE
165
191
224
250
262
311
362
390
CHAPTER I.
JURISPRUDENOE AS A SCIENCE.
CONSIDERING the vast interests which are affected by
the system of law that prevails in a country, it is
strange that the scientiﬁc treatment of the subject
should have commenced in England at so late a date,
and that its progress should still be regarded with
but little attention. Bentham and Austin are
generally credited with having made the ﬁrst efforts
in this direction, but the attempts to follow them
have been by no means adequate to ‘the importance
of the subject. The latter, indeed, is better known as
the founder of Jurisprudence proper, and a singular
concurrence of events placed him in a position which
gave extraordinary weight to the system he pro-
pounded, and enabled it for a long time to pass
almost without criticism. Of these we may instance
the fact that at a period when public interest was being
strongly drawn to legal matters he occupied a ﬁeld
of speculation which was almost entirely new, and
that he did so in a manner which would have made
him conspicuous among rivals, had any rivals at the
time existed. He further had the good fortune to be
connected with the most distinguished philosophical
l’ B
2 THE NATURE or POSITIVE LAW. _ [I
writer of the time, and much of his work has been
recovered from the notes taken by that pupil. Not
a little too of the credit which Austin obtained, was
due to the anxious care with which he strove to
introduce exactness of thought and expression into a
subject which had hitherto been left to vague gener-
alities, and his work not only established the science
of Jurisprudence, but created a possibility of intro-
ducing some certainty into the other social sciences as
well. From this point of view, indeed, it can never
be too highly praised, and considering the greatness
of the task he attempted and the success he achieved
in solving it, the defects which are sometimes charged
against his style may well be excused. But the
solitude in which Austin was at ﬁrst left could not
continue. His work gradually attracted the attention
of students, and from some of these criticism was
certain sooner or later to come. This result would,
perhaps, have been attained earlier had not J urispru-
dence occupied among us a position of insular isolation
from which other sciences are happily free. It is
strange that although our law is in a condition which
calls for continual denunciation, yet, as a people, we
believe that our knowledge and treatment of the sub-
ject is a matter upon which we may take some credit.
There is indeed a tacit understanding that though in
many other sciences the most valuable results come
from abroad, in this at least we occupy a position to
which little can be added by foreign intercourse.
Yet, if we consider that continental jurists had been
.at work for centuries before any systematic attention
I] JURISPRUDENCE AS A SCIENCE. 3
was given to Jurisprudence in our own country, and
that they avowedly took the Roman law for the basis
of their labours, the opinion may not seem paradoxical
that we should rather check our speculations by their
results, than expect them to receive the Austinian
system as a new and beneﬁcent boon. But though
much might have been gained by the study of the
German jurists, it was perhaps better that the ﬁrst
criticism of weight upon Austin’s system should come
from another quarter. The best way of impressing its
defects upon the English mind was to show that there
existed cases to which that system could in no way
be applied. This work was done by Sir Henry Maine,
ﬁrst when he explained the legal ideas existing in the
Village Community, and next when he reconstructed
the primitive conditions of the Irish tribe. The
services which he has thus rendered to the science of
Jurisprudence are of course invaluable. At a time
when the work of Austin seemed by the mere weight
of his name to prevent all whisper of doubt, we
have the completest proof that his system is by no
means of universal application, and that, perhaps, it
must only be regarded as a ﬁrst attempt to arrive at
the ultimate ideas of the science. In this state of
affairs it seems to be not unadvisable to consider
what is the real cause which has hitherto separated our
Jurisprudence from the same science elsewhere, and
we have now sufﬁcient material at our command to
construct such a view of the matter as may assist us
also to a better appreciation of the destiny that lies
before it. For this purpose I intend to give as clear
4 THE NATURE or POSITIVE LAW. [1
an account as within my limits is possible, of the
course that Law has hitherto taken; we shall then
be able to determine whether the system of Austin,
subject to certain limitations, is to be accepted as
ﬁnal, or whether we may not rather hope in the
future ‘for a system founded more surely upon‘ the
essential elements of Law and capable of a more
extended application. So little, however, has the real
nature of Jurisprudence as a science been hitherto
understood, that some attempt must ﬁrst be made to
vindicate its claim to that title, and to deﬁne the
subjects with which it deals. I
Recent works have shown that we are still in
much uncertainty as to the proper scope of Jurispru-
dence, but there seems to be little doubt that the word
ought to denote the science of Law in all its branches,
I and any attempt to restrict the word to one of those
branches should be discountenanced. Thus Austin
would restrict it to the science of Positive Law as it
is ; Professor Holland, again, is careful to disclaim for
it any connection with the substance of actual law,
and describes it as “ the formal science of Positive
Law ”1; while Professor Pollock would abridge the
part of this which is merely formal, and urges a greater
infusion of Material Law.2 I shall try to show that
there is really no need for this conﬂict about the
word, but that it does and ought to include the treat-
ment of Law from different points of view, and that it is
open to each writer to select his own department of it.
- 1 Jurisprudence, p. 11.
2 Essays in Jurisprudence and Ethics, p. 6.
I] J URISPRUDENCE AS A SCIENCE. 5
Every volume which treats of Law with a view to
deﬁning its terms, to exhibiting its arrangement, to ex-
plaining its principles, and to showing how they may
be carried into effect, is a work on Jurisprudence,
just as much as any volume which treats of number
and space in their various applications is a work
on Mathematics. Jurisprudence is the most general
word we have to denote the scientiﬁc treatment of
Law, and there is no reason to restrict its natural‘
meaning. We shall, however, gain the best idea of
its various departments by considering the modes in
which it has been actually developed. The science
of Law exists for the following purposes—
1. To acquire knowledge of it.
2. To effect improvements in it.
Everything, then, which contributes to these ends
comes within the sphere of Jurisprudence.
Like many other sciences Jurisprudence starts
from a basis of actual rules. This basis is found in
existing systems of law. Thus the law of a country
may be said to exist at ﬁrst in certain rules, and these
are learnt by heart or recorded in books. At that
time a lawyer has a knowledge of law, just as a
practical engineer has a knowledge of rules of engineer—
ing; but neither can be said to possess any smattering
of science. This indeed does not arise until there is
a desire to explain the principles upon which the rules
rest, and until lawyers and engineers appear who are
capable of doing this. Engineering, however, is only
one out of many of the practical applications of
6 THE NATURE or POSITIVE LAW. [1
mathematics, and this latter science has not been
formed by working back from engineering rules, but,
having ﬁrst arisen in a far simpler way, it has come
fully grown to the assistance of the practical science.
With Law it is different. It has only one practical
side, and from a consideration of this Jurisprudence
has been formed. It may be difﬁcult, indeed, to say
when the treatment of Law has become so reﬁned
as to be worthy of the name of a science, and its
real progress is of course different at different times
and places. We may say that it depends largely
upon the inﬂuence which the jurist, 6.6. the legal
expert, has upon its improvement; an influence
which the Roman lawyers possessed in a very high
degree. It was their aim, moreover, to bring their
rules more and more into harmony with actual needs,
and they turned Law into a science when they dis-
covered, as they imagined, a principle by which this
harmony could be brought about, and by which
their rules could be explained.
The course adopted by English lawyers has been
usually the reverse of this. They may, indeed,
ascertain their rules with much clearness, and make
them so general as greatly to reduce their number,
but to explain the bearing they have on the relations
of human life has been quite beyond their scope.
An example will make this clear. Few treatises on
English law have had such a reputation as Fearne’s
Contingent Remainders, and yet few are at the
present day so completely useless. I do not say
that in discussing rules it has no allusions to public
Il JURISPRUDENCE AS A SCIENCE. 7
convenience, but these bear only a small proportion
to the whole matter of the arguments. It is an
elaborate and very admirable statement of the highly
technical rules affecting certain estates ; but with the
abolition of the incidents upon which these estates
depended, the rules themselves have vanished. They
were the product of an artiﬁcial system which only
waited till the true science of Law was born to be
banished to its proper limbo. Now the only subject
in Roman law which bears anything like the same
proportion to that which the feudal tenures bear to
English law is the subject of possession, and it is
needless to remark how different is the treatment in
the two cases. Each alike has vanished from actual
law: the feudal tenures are almost gone, and posses-
sion, as equitable ownership, was long ago absorbed
in real ownership ; but the latter rested upon perma-
nent facts and needs of life, and its rules were worked
out in accordance with those needs. While, then, it is
possible to present these in a truly scientiﬁc manner,
we can hardly imagine a future Savigny making his re-
putation by a masterly exposition of the rules of con-
tingent remainders. I must confess to a certain feeling
that Law is meant to serve the interests of the people,
and that no treatment of it can be called scientiﬁc
which does not show how it contributes to this end.
I have said, then, that the treatment of Roman
law became scientiﬁc as soon as the jurists learnt to
explain its principles upon rational grounds. Let
us apply the same test to English law. The ﬁrst
systematic exposition of English law which we need
8 THE NATURE OF POSITIVE LAW. [1
consider is that of Blackstone, but it fell into great
discredit with succeeding jurists because of this very
want of the scientiﬁc element. We must not forget,
however, that as a compendium of law it had great
merits. It presented the law in a perspicuous and
interesting manner, and attached to it a large amount,
if not of rational, at least of historical explanation.
For this indeed it is not easy to ﬁnd fault with the
author. His object was to enable the laws of
England to be known, and in this he may be said to
have succeeded so far as it was possible for any man
to succeed. There are two ways besides the merely
empirical, in which law can be learnt; one is the
historical, by showing the historical facts in which it
has had its rise; the other the rational, by showing
how it is founded on current morality assisted, where
necessary, by the principle of utility. I need hardly
say that Blackstone was obliged to choose the ﬁrst
mode because the second was impossible. It has
been remarked that Bentham was driven to adopt his
method through sheer repulsion from Blackstone ; but
how little this was due to any fault of the latter is
clear from the fact that Bentham was compelled to
break altogether with law as it is, and deal exclusively
with law as it ought to be. Since it was impossible
to explain existing practice on rational principles, he
preferred to lay down the principles and wait for them
to be incorporated into practice. Hence we received
< from him the principle of utility, with the many
applications which he made of it in his plans for the
Civil and Penal Code. But it must be remembered
I] J URISPRUDEN CE AS A SCIENCE. 9
that Bentham was before his age, and however great
may be the advantage we have derived from this
fact, yet it introduces a disturbing factor in the
natural growth of Jurisprudence. The proper suc-
cessor to Blackstone was Austin, with his Comparative
and Analytical methods, followed as he has been by
Sir Henry Maine and others. I shall try to justify
this remark in the following manner.
Bentham boasted that by his Fragment on Govern-
ment he was the ﬁrst who urged men to break with
the laws of their ancestors and to venture freely
on a career of reform. But however necessary this
may be at certain times, it is opposed to the real in-
stincts and interests of men. The true course is
shadowed’ forth in Roman history. There we ﬁnd that
the ﬁrst improvement came from the consideration of
the laws of other nations, and only afterwards was it‘
accelerated by the invention of a law of Nature. Thus
the comparative treatment of Law preceded its free
theoretical treatment. The same course was really
taken by Austin. Disapproving of Blackstone’s
method as much as Bentham, and accepting fully the
principle of utility of the latter, he yet felt that some-
thing more was wanting to the construction of a
science of Jurisprudence. We must know not only
what principles and distinct-ions seemed to Bentham
necessary to be incorporated in law, but we must
know what principles and distinctions have actually
been incorporated elsewhere; and the main reason is,
that this very fact of incorporation elsewhere is one of
the best proofs we can have of their utility. The
10 THE NATURE OF POSITIVE LAW. [1
most practical department of Government, perhaps, is
that of the Post Ofﬁce, and I believe that when a new
plan is proposed here it is ﬁrst thought necessary to
enquire how it has worked in other countries which
have adopted it. We do not often, indeed, go so far as
this in Jurisprudence, but remembering that all law is
of slow growth, we may well conclude that it is only
incorporated into the systems of other countries if it
answers to a real need. Now for our purpose it is
enough to compare the Roman law with the English,
and this is what Austin did.1 Let us consider, then,
more nearly the result of such a comparison.
I have said that the object of the science of Law
is to exhibit and explain its ideas and principles in
such a manner as to facilitate their acquisition by the
lawyer and their improvement by the legislator. As
long as we take our distinctions solely from English
law and explain them merely by history, we do not
enter upon science, for the distinctions and principles
may be merely accidental, and the historical reasons
may have no reference to utility. If, however, we
were to show that these distinctions and principles
have a real basis in the wants of the people, we should
then treat the law scientiﬁcally, and we should work
out the Particular Jurisprudence of the country. This
at least is the only natural meaning I can give to this
phrase. Jurisprudence deals with the regulation of
human relations and of human acts in accordance with
the needs of men ; if, then, we take up a body of law
and show how its distinctions are of permanent im-
1 Austin, ii. 1 113.
I] J URISPRUDEN CE AS A SCIENCE. 11
portance, and how its principles conform to this object,
we have a case of Particular Jurisprudence. It is
Jurisprudence, for it deals with the law in a scientiﬁc
manner, and it is Particular, for it draws its conclu-
sions from one body of law only. But if, now, we can
compare this with another body of law which is known
to be of consummate value, and if to this the scientiﬁc
method has already been applied, our course is ren-
dered much easier. We need not take every distinction
and enquire whether this is of permanent or merely
accidental importance ; the surest test will be to note
whether a similar distinction exists in our model
system. I have already referred to the incidents of
contingent estates, and many other parts of the feudal
system might be mentioned which have no counter-
part in Roman law; the probability, then, is that
they are of but temporary interest, and that it is
sufﬁcient to notice their existence without seeking to
justify their utility. Thus, if we take two such sys-
tems of law for our basis of observation and note the
distinctions and principles which they have in common,
this is so good a guarantee of their permanent utility
that we may adopt them into our system of J uris-
prudence. But it must be noticed that this system
is no longer particular but general; more or less general
indeed, according to the area of observation, but still
general as opposed to particular. Moreover, having
once arrived at a system of General Jurisprudence, it
is impossible to go back to a system of Particular
Jurisprudence ; the former is an easier and more satis-
factory way of arriving at the results of the latter.
12 THE NATURE OF POSITIVE LAW. [1
This, indeed, I apprehend is the meaning of Professor
Holland when in the following words he summarily
dismisses Particular Jurisprudence :—
The wider the ﬁeld of observation the greater of course will
be the chance of the principles of a science being rightly and
completely enunciated; but, so far as they are scientiﬁc truths
at all, they are always general and of universal application.1
The case, then, is simply this, that when the
method of General Jurisprudence has once been intro-
duced, no one would dream of going back to the
method of Particular Jurisprudence. We shall still
have to consider what was the meaning which Austin
probably attached to the phrase.
So far I have spoken of distinctions and prin-
ciples which are to be found in at least several systems
of law; but there are certain ideas of a more abstract
nature still which deserve special treatment. They
are the ideas upon which all Law is founded and the
distinctions which lie at the very root of its arrange-
ment. These are enumerated by Austin (ii. 1108),
and are said to be the special matter of General
Jurisprudence. We may mention among them the
ideas of Law, Right, and Duty; the division of
Rights into Property and Obligation; and the chief
distinctions of each of the latter. These he asserts
to be necessary parts of every system of law, and
then goes on to say :—

Of the principles, notions, and distinctions which are the
subjects of General Jurisprudence, others are not necessary (in .
the sense which I have given to the expression). We may
1 J urisprudenee, p. 9.
I] JUR-ISPRUDENCE AS A SCIENCE. 13
imagine coherently an expanded system of law, without conceiv-
ing them as constituent parts of it. But as they rest upon
grounds of utility which extend through all communities, and
which are palpable and obvious in all reﬁned communities, they,
in fact, occur very generally in matured systems of law; and
therefore may be ranked properly with the general principles ‘
which are the subjects of general jurisprudence.1
We thus see that Austin makes a distinction
between those subjects which are necessarily found in
all systems of law, and those which, as a matter of
fact, are usually found there, and this distinction really
corresponds to two divisions of the subject. The
ideas and distinctions which are enumerated above
are those with which Austin especially deals, and as
they constitute the basis upon which the Science of
Jurisprudence is founded, they may not improperly
be set apart for separate treatment.
‘If now we turn to Professor Holland’s work, we
ﬁnd that this, covering Austin’s ground and also much
besides, is called by its author General Jurisprudence.
Another authority, too, Professor Pollock, recommends
that part, at least, of what is peculiar to Austin
should be dropped. He says :—
The two chapters on the various usages of the Word law might
perhaps bear to be yet further shortened ; I should doubt, indeed,
whether their subject is properly within the scope of juris-
prudence.2
Why should we not reconcile these conﬂicting autho-
rities by recognising two departments, the Pure and
the General? This will perhaps appear more plau—
sible after the following considerations.
1 ii. 1109. 2 Essays, p. 9.
14 THE NATURE or POSITIVE LAW. [1
I have said that Professor Holland sets down J uris-
prudence as the formal science of Positive Law ; and
Professor Pollock has pointed out how he really leaves
this ground and undertakes in places the exposition
of actual English law. He then says that Jurispru-
dence must always vacillate between two extremes ;
it is to be a mere theory of legal classiﬁcation, a cata-
logue of blank forms ; or if it undertakes to illustrate
these blank forms, it will tend to become an exposition
of some particular system.1 But the real mistake, I
think, has been in stating that Jurisprudence is merely
a formal science. Pure Jurisprudence, as I have de-
ﬁned it, may be a formal science, but General Juris-
prudence certainly is not. Its object is not only to
arrive at general distinctions, but at general principles.
Thus prescription is a means of acquiring property both
in English and in Roman law. This, then, is properly
pointed out in General Jurisprudence, and its mean-
ing explained; the actual number of years, however,
required for prescription is not touched upon. But
Jurisprudence does not stop here. Austin says that
Particular Jurisprudence is the only practical J uris-
prudence.2 I have, indeed, already pointed out that
this is a form of the science incidental to its early
stages, and to which it is impossible to return. What,
then, is really the department of mature Jurisprudence
which corresponds to it? This will be clear if we
remember that, as Professor Pollock says, the best
way of showing the value of Jurisprudence is to exhibit
its application to a particular system of law. This
1 Essays, p. 6. 2 ii. 1112.
1] JURISPRUDENCE AS A SCIENCE. 15
remark shows us at once the object at which we have
continually to aim, and gives a name for this part of
the science. \Ve return from the study of General
Jurisprudence to apply the classiﬁcation we have
invented, and the principles we have discovered to a
particular system. We do not now merely take our
examples from it, but we go methodically through it.
By our just arrangement and rational explanation we
impress it on the memory, and in the same way we
discover its gaps and its absurdities. Let this, then,
be held as the aim of all our work, and let the science
in this form be called Applied Jurisprudence. We
shall then have an abstract and a concrete form of the
science. To Pure and General Jurisprudence will
belong the discussion of the most general ideas and
the study of classiﬁcation and of general principles.
To Applied Jurisprudence belongs the application of
this classiﬁcation and of these principles in the ex—
position of a given system of law, and this for
the double purpose of learning the law and of
improving it.
The development of Jurisprudence, then, is brieﬂy
as follows :—
1. The unwieldy mass of the law produces a desire
for simpliﬁcation. This is done by arranging it as
clearly as possible, with the assistance of historical
explanations. '
2. These explanations not suﬁicing, it is compared
with other systems, and certain common distinctions
and principles are detected. These are assumed to
16 THE NATURE or POSITIVE LAW. [1
have a more permanent value ‘than others: they are
said to be in accordance with Nature.
3. At length it is discovered that these only differ
from the rest in that they clearly follow the principle
of utility. Henceforth, then, we can provisionally
guess that this principle is satisﬁed by comparing
different systems ; but when this method fails, we can
apply the principle directly.
4. Fortiﬁed now with the results of General J uris-
prudence, we return to the point from which we
started, the law of a particular country; and it is
our object, by means of Applied Jurisprudence, to
secure a systematic exposition of this law, in such a
way as shall enable it to be easily acquired and to be
easily adjusted to actual requirements.
Indeed Austin, narrowly as he limits the scope of
the science, cannot escape the fact that one of its
chief objects is the amendment of the law. The best
proof of this is that he goes so far out of his way to
establish the test by which amendment should take
place; but he also expressly notices that no rational
exposition of the principles of law can be attempted,
without at the same time exhibiting its deﬁciencies.1
In the following pages we are concerned mainly with
a portion of Pure Jurisprudence as it has been deﬁned
above, and I have taken up this subject in order to
ascertain the bearing which recent historical investi-
gations have upon it, and also because it may be use-
ful to point out the real differences that exist on this
1 ii. 1113.
I] J URISPRUDENCE AS A SCIENCE. 17
matter between the German and English schools of
Jurisprudence. '
I may, then, state somewhat more exactly what
I conceive to be the special subjects of Pure Juris-
prudence. I have said that they are those funda-
mental ideas and distinctions which underlie all
systems of law, and hence we have to consider—
1. The nature of Law.
2. The nature and fundamental distinctions of
Rights and Duties.
Professor Holland, commenting upon the different
meanings of the words which, in Continental lan-
guages, correspond to our general term Law, shows
how they denote indifferently Law, or Rights, or
Justice. To this fact I shall have occasion to return
later on. Here I wish to consider what is meant by
saying that Jurisprudence may be “ the science of'
any one of three things——
(1) of Law,
(2) of Rights,
of Justice,”1
and that before we can expect to get any accuracy in.
the treatment of the science we must determine rigor-
ously which of these three ideas shall serve as its.
basis. But this is really another attempt to intro-
duce into the science that narrowness of purpose-
which I have deprecated above. As to the distinction
between the ﬁrst two, we need hardly trouble our-
1 Jurisprudence, p. 12.
C
18 THE NATURE OF POSITIVE LAW. [1
selves. Law and Rights are so intimately connected
that the science of one must necessarily be the science
of the other. In any arrangement of the law it is
impossible to separate them. It may be convenient,
indeed, to begin with law and its various divisions ;
but when we come to deal with these divisions in
detail we inevitably fall back upon Rights—at any
rate, in Private Law—as our basis of ‘arrangement.
We have only, then, to consider whether there is such
an irreconcilable difference between Law and Justice
that the latter must not be mentioned when we are
treating of the former. It is, however, at least an
admissible theory that Jurisprudence is the science of
J ustice~ so far as the attainment of this depends on
Law. I am aware of the hazardous nature of the
attempt to introduce this element into a volume
dealing with law, and I should hardly venture to
do so did I not seem inevitably drawn thereto by
the inadequate explanation of its nature and object
which has been given by modern writers. The
following remarks will explain the view which I pro-
pose to take. In a very interesting note to page 275,
vol. i., Austin discusses the maxim of Hobbes that
“ no law can be unjust,” and then states the meaning
of the abstract word justice. As to the former part,
I need say little.‘ If Hobbes meant that “ no posi-
tive law is legally unjust,” it is a pity he did not say
so; but even then this would be a glaring misuse of
the word unjust. Upon Austin’s deﬁnition of the
word justice, however, more attention may proﬁtably
be bestowed. His main point is that the word is one
I] J URISPRUDENCE AS A SCIENCE. _ 19
of varying import ; everything depends upon the test
by which we determine whether a thing is just or
unjust. Here, then, it is convenient to introduce that
deus ex machine? of which our author makes so much
use—the Law of God. Justice is that which conforms
to the divine law. This, of course, prepares the way
for the next step. The divine law, which is merely
our old friend the Law of Nature in very transparent
disguise, is known by conformity to the test of utility:
hence justice is that which conforms to the test of
utility. Now, the ﬁrst thing I protest against is the
apparent certainty here given to the idea of justice.
As soon as any one can state with accuracy what is
the divine law, or what is positive law, in any given
case, then let justice be nailed down to this certainty
if any one desires it. Meanwhile, it is a pity to rob
a word of its meaning in order to throw over it such
a very ﬂimsy cloak of exactness. In the next place, I
wish to point out that justice has no immediate con-
nection with any divine law or any test of utility
whatever; its immediate appeal is to the emotional
nature of man, and the only connection between
justice and utility is, that the emotions which are
aroused by the former (or its reverse) gradually adapt
themselves to the dictates of the latter. The whole
system of Hobbes, and that of Austin which is founded
upon it, rests upon the supposition ,of a sovereign
armed with illimitable power. There is, however,
another power to which few sovereigns have ever dared
to oppose themselves, and that is the sense of Right
which resides in the people at large—in other words,
20 THE NATURE or POSITIVE LAW. [1
the national conscience. If, then, I take this as the
test to which all law sooner or later must conform, it '
is for the-A'purpose of giving once more a meaning to
the word justice that shall be, to some extent at least,
compatible with common usage. The whole progress
of the development of law shows that it is most rea-
sonable to regard it as resting normally upon public
opinion for its basis of support, and only exceptionally
upon the sovereign power. Whatever obscurity there
may at ﬁrst seem to be in this view I must hope to
clear up in the course of the work. So much it has
been necessary to say in order to prepare the way for
a somewhat new method of viewing the objects of
Jurisprudence.
I have hinted above that I have small respect for
the manner in which Austin introduces the phrase
“ Law of God.” Such a law is either existent or
is not existent. In the former case it only concerns
us if it has been revealed; and then it is, as is well
known, conﬁned to a few generally received rules
of morality. But to apply it 'to the most perfect
rules which may hereafter be introduced for the dis-
tribution of property is at variance with all reason.
Of what use is it to speak of such a law, when we
never expect it to be revealed to us, and when we
can never do more than guess that we have discovered
it? Let us grant, if necessary, that the foundations
of morality rest on revealed religion, but do not let
us cover a practical disbelief in this by extending the
phrase Law of God to all conceivable matters about
which men may make laws.
I] J URISPRUDEN CE AS A SCIENCE. 21
In brief, then, a sovereign may make laws with
direct reference to utility, and enforce them against
the conscience or opinion of the people. This, how-
ever, is opposed to all modern practice in govern-
ment. Law is made in accordance with public
opinion ; and this, may or may not have been formed
according to the principle of utility. Here, if any-
where, we may use the motto “ Vow joopuli, vow
Dei,” to assist us in our passage from the ideas of
Austin to a more practical method of thinking.
The primary test of law is not any supposed divine
law, but popular opinion: and it is only where, from
the nature of the case, this does not exist, that we
can have recourse immediately to the principle of 111.
utility. For this purpose we may compare the State
to an individual, and then we see that Austin makes
the very mistake as to legislation which he urges the
individual to avoid in his own conduct. He is only
to refer immediately to the test of utility when moral
rules, or the dictates of his conscience, fail him: so
the sovereign power should only resort to the same
test when the dictates of the public conscience or of
public opinion afford no guidance. I assume here that
the sovereign is identiﬁed in interest and opinion with
the people : the necessary qualiﬁcations that must be
made in actual life I shall consider in the sequel.
Just, then, as the individual makes rules for his own
conduct, sometimes by direct reference to conscience,
sometimes after ﬁrst consciously forming an opinion,
so the sovereign power sometimes legislates directly
in accordance with public opinion, whether this is
22 THE NATURE or POSITIVE LAw. [I
formed unconsciously or after a lengthened period of
discussion, and sometimes, when this method fails,
it may appeal directly to utility; though even here
the new law is justiﬁed, not on mere grounds of utility,
but because this is the test to which public opinion
will surely adapt itself sooner or later. I differ, then,
from Austin simply in this, that I make public
opinion, and not his pretended Law of God, the test
to which all law must conform ; and when this opinion
cannot be directly ascertained, I take utility as the
guide to it. It seems to me that this method of
looking at law is in accordance with the facts of very
ancient and of modern life.
I was led to make the above explanation in con-
sidering Professor Holland’s dictum that J uris-
prudence is the science of Law or of Justice, but not
of both. I should rather say that in any scientiﬁc
work on Law the two should never be entirely
separated. This proposition will not be assented to
if we regard Jurisprudence as merely a science for
the purpose of classiﬁcation, but I have already tried
to show that it has a wider object than this. The
principles of law must be presented in such a way as
to show that they either do or do not conform to the
principle of utility, for in a scientiﬁc work we should
no more appeal to Justice directly than in Austin’s
system we should appeal to the Law of God. We
may at this point, indeed, see the advantage of
having a distinct place assigned to Pure Juris-
prudence; it is here that the real relation between
Law and Justice should be discussed; when we
1] JURISPRUDENCE AS A SCIENCE. 23
emerge from this elementary stage and pass to
General and Applied Jurisprudence, as deﬁned above,
we need no longer refer to Justice directly any more _
than we refer to the Divine Law directly; when it is
necessary to justify a principle we may, as I have
already shown, do this either by demonstrating its
utility or referring to its general adoption.
Again, we must remember that Jurisprudence is
closely allied both to Morals and to Politics. Since,
then, when we enter upon the proper subject-matter
of the science it is improper to refer to either of
these, it is all the more important to have a special
branch in which the limits of Jurisprudence may be
accurately deﬁned, and in which we need be under
no sense of obligation to pass on hurriedly to more
practical matters.
It is the business, then, of Pure Jurisprudence to
examine the relation which Jurisprudence, or the
science of Law, bears to Ethics, or the science of
Morality, and to Politics, or the science of Govern-
ment. But the connection between Jurisprudence and
Politics may exist at three points. We may enquire
how the State assists in making law, in ascertaining
law, and in sanctioning law. It would seem then
that the principles and methods of legislation make
an essential part of Pure Jurisprudence, for ‘we can-
not ascertain the relation of Law to Justice without
discovering the principles of Legislation, or the re-
lation of Law to Politics without discovering its
methods. Hence we may exhibit the proper subjects
of Pure Jurisprudence in the following manner :—
24 THE NATURE OF POSITIVE LAW. [I
1. Law, its deﬁnition and explanation, and
herein——
1. Of the relation of Jurisprudence to Ethics.
' 2. Of the relation of Jurisprudence to Politics.
3. Of the fundamental principles of Legislation.
11. The different departments of Law.
III. The nature of Rights and Duties.
It is only after we have examined into these
matters that we are able to advance further in the
science of Jurisprudence, to expound the principles
and distinctions which prevail generally in most
bodies of Law, and to facilitate the knowledge and
improvement of particular bodies of Law. In the
following pages we shall be concerned with a portion
only of the subjects here enumerated, and I shall
attempt to discover the most general meaning which
may properly be given to Law and the relation which
it should bear to the other sciences just mentioned.
Before commencing this, however, I shall offer some
remarks upon the origin of rules of Law, on the
assumption that Jurisprudence, to deﬁne it in full, is
the science of the attainment of Justice by means of
rules of Law. '
II] LAW AND EQUITY. 25
CHAPTER II.
LAW AND EQUITY.
THERE is a well-known distinction between sciences,
founded upon the certainty with which their prin-
ciples are arrived at by induction, and the facility
with which they can be then employed deductively
for the establishment of rules to govern future cases.
Mathematics, of course, furnishes us with the best
example of a science which passes easily and rapidly
through the inductive stage, and whose chief interest
lies in the deductive processes to which it is appli-
cable. Its two elementary branches are Algebra and
Geometry. The ultimate ideas of these are number
and form, ideas which are derived from the experi-
ence of everyday life. These ideas, translated into
concrete shape, are combined in each case according
to a few universally acknowledged axioms, and upon
this slender but ﬁrm basis the whole superstructure
is erected. While, therefore, the discussion of these
ultimate ideas and of the validity of these axioms is
a subject of interest to every one who is anxious to
enquire into the reasons of things, to the ordinary
student it is immaterial, and he is content to occupy
himself with some of the many applications of which
the science is capable. Jurisprudence, however, seems
26 THE NATURE or POSITIVE LAW. [11
to stand with the social sciences in general at the
other end of the scale. The subject with which it
deals is inﬁnitely various, and the ideas and the prin-
ciples upon which it rests are only arrived at after
long and tedious enquiry. As we watch the develop-
ment of Law we shall see more clearly what the pro-
cess here involved really is, but in order to give
deﬁniteness to the following remarks we may briefly
describe it as follows.
The object of Law is to regulate the relations
existing between men in such a way as to satisfy the
sense of Right residing in the community. Originally
the interests of the individual members of the com-
munity are so united that the law, whether arising
gradually by custom or imposed by a natural authority,
an authority, that is, which is not due to conquest,
produces this result. In course of time, however, the
separation of interests and the increasing complexity
of human affairs makes this direct appeal to the sense
of Right impossible. Hereupon there arise contested
cases, and these are referred to the judgment of wise
men. At ﬁrst their judgments represent nothing
more than the best opinion upon what will satisfy
the common feeling of Right; afterwards they come
to form to a large extent the material from which
rules of law are framed, and subsequent judgments,
being based upon these rules, are thus removed from
direct contact with public opinion. It is prob-
able that this is the natural source of the larger
part of private law. If, now, the consideration of
these rules falls into the hands of men who are
11] LAW AND EQUITY. 27
gifted with the scientiﬁc spirit, 216. with an intelligent
conception of the purposes which the rules are meant
to serve, a science of Jurisprudence speedily arises.
The position, however, which the science will occupy
depends on the manner in which it is studied and
applied. It will be best for our purpose to take as
an example the development of law at Rome. There
the rules, as originally obtained, did correspond to a
certain extent with the facts of life; but in course of
time there came to be a total failure to allow for dis-
turbing causes when they were used again in practice.
Hence we get what are known as strict rules of law.
These are simple, deﬁnite, and easy to work with;
they are felt, however, to produce many cases of in-
justice, that is, they often violate the common sense
of Right, and they produce a general feeling of dis-
satisfaction. The narrowness of the old Jus Civile
is well known, a narrowness which was perhaps neces-
sary in the beginning of the science. But the law
as thus determined could not have lasted, had not a
way been found of reconciling this strictness with the
needs of life. The remedy lay in the practical sense
of the Roman jurists. A simple example from another
science will make this clear. A rule of gunnery is
founded originally upon certain dynamical formulae
obtained by applying algebraical and geometrical
processes to problems whose physical basis consists of
the elementary laws of motion. But no one dreams
of taking the rule immediately from the equation to
the parabolic path of a projectile. It is known that
this would produce a wrong result. It is recognised
28 THE NATURE OF POSITIVE LAW. [11
that the equation, though valuable, does not corre-
spond to the path of the cannon ball, and that before
it can do so it must be corrected by allowing for the
resistance of the air. This seems to illustrate the
fact in legal development of which I am speaking.
The old rule of law is correct, exactly as the para-
bolic path of the projectile is correct ; it is a valuable
foundation on which to build a judgment. But to
apply it without correction to the facts of life will in
many cases as surely be a mistake, as it would be to
point a gun without allowing for disturbing causes.
We have, however, this diﬁ‘erence. The gunner, while
thoroughly instructed in his rule, may be safely left
to use his own discretion as well. His one object is
to hit the mark, and if he does this with sufﬁcient
success no one cares to enquire what rules he has
actually worked with. But in Law the mark in
each particular case is not so evident. In general we
can only tell that substantial justice is being done by
considering the average results of a number of differ-
ent cases. In each particular case then we enquire
only what rule has been followed, and the goodness of
the rule is judged by the general satisfaction pro-
duced when it is frequently applied.
Now when those original rules which are ﬁrst and
most readily obtained, and which we have called the
rules of strict law, are used without modiﬁcation,
there is often no satisfaction at all produced at the
result. It becomes obvious that those who apply
the law miss their aim and work injustice. Hence
arose at Rome the necessity for Praetorian legislation
11] LAW AND EQUITY. 2 9
and the establishment of what we may safely call
rules of equity. Thus some of the earliest and
clearest rules have to do with ownership, with the
' creation, the transmission, and other incidents of the
rights involved in it. The Praetor, then, being called
upon to decide some question of ownership, ﬁnds that
the rules of strict law are obviously at variance with
justice. A person has acquired some property by
a good title (justus titulus) and in good faith, but
owing to an informality the legal ownership has not
passed to him. Usucaption has commenced to run,
and within a year this defect will be remedied, but in
the meantime he loses possession of the thing and is
left without a remedy. This is a case in which it
is clear that the rules of strict law do not satisfy
justice. The Praetor introduces an action appro-
priate to the case, the Actz'o Publicz'anot in Rem, and
this mistake in the application of law is rectiﬁed.
The course taken by the jurists proper is, some—
what different to this. Equity, if it is to have a
permanent value, assumes that there must be rules
of strict law, and tries to invent other rules which
may be blended with them in practice, that so the
ultimate decision may agree with the requirements
of life. We have seen that the ﬁrst rules were
obtained by considering what was ‘in accordance
with the sense of Right in particular cases. The
object of science, however, is to re-examine con-
tinually those ﬁrst inductions upon which the early
rules of law were founded, and to see if a more care-
ful observation of facts cannot put them on a broader
30 THE NATURE OF POSITIVE LAW. [11
basis ; in other (words, it tries to improve the original
rule, as well as to correct its effect by subsidiary ones.
An example will make this clear. The original rule
as to the acquisition of certain things bound up the
ownership of them with the observance of particular
ceremonies, and while cases arose only among Roman
citizens the result was substantially correct, that is,
the intentions of the parties were carried into effect.
But when the same system of law came to be applied
to other peoples as well, and the number of cases
was multiplied, it was found that the legal re-
”iation between‘ men which corresponded to this
idea could not in justice be thus limited. The rule
founded upon the observation of a certain class of
cases, 'le. upon those in which Roman citizens were
the parties, was no longer correct. The transfer of
ownership did not in its true essence depend upon the
ceremonies of the mancipation, and it was necessary
to make an effort to ﬁnd what were the most general
facts upon which it did depend. The Roman lawyers
found these to exist in an intention to transfer on
the part of the alienor and an actual receipt by the
alienee. Law, however, cannot deal with intention;
there must be an overt sign. This was found in the
existence of a just-us titulus. Hence, according to the
jurists, ownership is transferred when there exists a
justus titulus followed by tmolt'tt'o. One great func-
tion of Jurisprudence, then, is to cast about for rules
which shall represent more accurately than the old
rules the facts of life.
This, however, is not sufficient. The rules of
11] LAW AND EQUITY. 31
equity afe still required. Long before that more
general form is given to the rule there are cases
where its strict application works positive injustice.
This was remedied by the Roman lawyers, by the
liberal allowance of a jus sing-alum. Of this I shall
speak more fully later on; it will be suﬁicient here
to refer brieﬂy to the method. When the Roman
jurist had his attention drawn to the apparent wrong
that would be inﬂicted by applying a rule of law-—
i.e. when judgments founded upon it would miss their
mark and be unjust—his ﬁrst enquiry was as to the
importance of the case in question. It is a choice of
two evils. If the case is of rare occurrence it is better
to let the law take its. course. The advantage of
deﬁnite rules of law, and the objection to the indis-
criminate multiplication of them, are too great to
allow of continual deviations. But if the case is one
of a large number, and calls, therefore, for a remedy,
the jurist makes an exception; he creates in this case
a subsidiary rule of law, which is really a rule of
equity ; he calls it a rule of jus singulare, and states
that it is allowed “causa utilitatis.” The work of
extending the original rules, however, still goes on,
and in course of time the rule of jus singulare is often
included in the improved rule of law.
We thus see clearly the successive stages in the .
development of law. At ﬁrst it is purely empirical;
the decisions of the original arbitrators or judges
are based upon direct observation of facts; in other
words, upon an immediate perception of custom, or
of the justice of the case. It next passes into the
32 THE NATURE OF POSITIVE LAW. [II
early scientiﬁc stage : rules are formed, but these are
only approximate. At ﬁrst, probably, allowance for
this is made in practice; and as their defects are
thus not noticed, no objection is taken to them.
Soon, however, the value. of deﬁnite rules is dis—
covered; the judge’s discretion is withdrawn and
the strict law is applied. Hereupon cases of injustice
are apparent on all hands, and it becomes evident
that mistakes in the regulation of rights are being
made. The remedy is at ﬁrst applied sparingly, and
the Preetor introduces rules of equity with a grudging
hand. Then, happily, comes the era of the great} jurists.
They see that Jurisprudence has a double. function;
it must continually strive to set the rules of law by
truer and more extensive inductions upon a sounder
basis, and till this can be done it must consider what
cases are suﬁiciently important to deserve immediate
aid by means of jus siugulare, or by a rule of equity.
There are, moreover, rules of equity of a some-
what different character, rules which can never be
included in the regular rules of law, but are intended
to correct those disturbing inﬂuences which some-
times occur. We may illustrate this by our former
example. The mathematician gives to the gunner
a calculation of the path of a projectile, taken from
pure dynamics. In applying this the gunner ﬁnds
he is perpetually wrong, and he gets into the way
of making a special allowance each time he uses
the rule. This, if approved by the mathematician,
corresponds to a rule of law corrected by rule of jus
singular/re. In course of time, however, the mathe-
11] LAW AND EQUITY. ‘ 33
matician sees how to alter his work so as to allow for
the resistance of the air. He now gives the corrected
rule to the gunner, and upon the latter following it
the desired result is obtained. Here we have the rule
of law amended so as to include the provisional rule
of jus singulalre. Some day, however, the gunner
ﬁnds that his aim is completely wrong, and this is due
to a high wind which is blowing at the time. He
now ﬁnds himself compelled to use his own judgment
once again ; and, on appealing to his scientiﬁc guide,
he will be told that although the original rule cannot
be altered to suit this occasional need, yet a distinct
formula may be given by which he can allow for the
force of the wind when necessary. This seems to
represent the case of those rules of English Law which
have grown up in courts of Equity, and which re-
gulate the effect which fraud, mistake, etc., shall be
allowed to exercise on legal decisions. We thus have
a triple division of legal rules. There are the rules of
strict law, which have been adapted as nearly as
possible to general requirements; as, however, this
adaptation is never perfect, they are supplemented
by the introduction of temporary rules of Equity. It
is characteristic of these that they are not intended
to be permanent, but are merely kept as singular
rules till they can be included in the more general
ones. Many of the rules hitherto made by courts of
equity as to trust estates seem to be of this kind,
and they disappear as it is found that the ordinary
legal rules of ownership must be applied in these cases
also. And ﬁnally, we have permanent rules of Equity.
D
34 ‘THE NATURE or‘ POSITIVE LAW. [11
These refer to matters which cannot be allowed for
in the general rules; they are only of occasional
occurrence, and their effect must be specially calcu-
lated. This division seems to afford a sound distinc-
tion between Law and Equity.
Every science exists originally in its pure form.
Only by long experience is it possible to use it
accurately in practice. Hence Law begins with the
jus stT-ictum. How long it will remain in that‘ stage
depends on the capability of the lawyers for realising
the real relations of men, and their desire and power
to satisfy general'needs. We may say that the natu—
ral division of labour occurs here also. There is room
for the jurist and the judge : the former collects from
reported cases, from customs, and perhaps from other
sources, the rules of law which the judge is to use;
the latter, in using these, notes continually Whether
substantial justice seems to be done, and reports to
the jurist. When, then, this last is satisﬁed that
cases exist in sufficient number and of sufﬁcient im-'
portance to justify a departure from the law, he grants
a rule of jus siugulare for the immediate use of the
judge, and sets to Work to consider whether this is to
be only temporary or whether it is to be permanent.
If the former, he extends the rule of Law as speedily
as possible so as to include it ; if the latter, he reckons
it as a permanent addition to the rules of Equity.
Both of these are in the hands of the jurist, but each
belongs to a different part of his science. The former
may be said to be the subject-matter of Pure, the
latter of Applied Law. The improvement of Law
IIl LAW AND EQUITY. 35
depends, on the one hand, upon the skill of the judge
in noting the real state of the relations that come
before him for decision, and the effect of his judgment
upon them; and upon the other, on the readiness of
the jurist to extend his rules of Law and increase his
rules of Equity.
It must be remembered that we are now consider-
ing Jurisprudence as a science in the hands of experts
entirely. This was a condition to which it very
nearly attained at Rome, and which it has to a certain
extent possessed in England. With us, however, the
business of the jurist and of the judge has usually
been blended, and the science has been developed not
in the seclusion of a school, but amid the distracting
business of the courts. There is now, moreover, a
growing disinclination to make new rules or alter old
ones, and this business is unhappily thrown more and
more upon the legislature. Legislation, however,
never has been equal to the work thus cast upon it ;
and we must amend this state of things either by
vastly increasing the resources of Parliament or by
allowing more authority to the work of jurists.
But in all probability Parliament will never be
able to do more than settle broad questions of public
policy, and decide the manner in which rights shall
be divided between conﬂicting classes. If the details
are ever to be satisfactorily arranged there must be a
regular science of Law, and means must be devised
for ensuring to its dicta a general assent. The idea
may be said to be chimerical, but the world only im-
proves by the gradual realisation of chimerical ideas.
36 THE NATURE OF POSITIVE LAW. [111
CHAPTER III.
THE INnUoTIoNs or JURISPRUDENOE.
WE have been regarding Jurisprudence as a science
which has for its ultimate aim the ascertainment of
rules which shall regulate human relations in accord-
ance with the common sense of Right. The course
pursued by it will be the same, then, as that pursued
by every other science ; by successive abstractions
from similar cases it will arrive at general principles
and ideas ; in applying its rules to actual life again it
will allow, as far as possible, for the elements which
have been dropped; and for it, as for every other
science, the great means of improvement will be veriﬁ-
cation. Let us examine more clearly what this means.
The ultimate object of every practical science is
the making of rules which shall guide the actions of
men. At ﬁrst men decide their future acts by a
direct reference to past cases. At this stage there is
no science, the decisions are merely empirical. Then
in a certain number of past cases, a common element
is seen, and we infer that what has held good in the
past will hold good wherever this common element is
found in the future. In other words, we make a rule,
and we have now the beginning of science. The
III] THE IN DUCTIONS OF J URISPRUDENCE. 37
detection of the common element, and the inference
that it is this which inﬂuences the cases, is a process of
induction ; the result is to lay down a principle which
shall govern future similar cases. These principles
are, however, as yet in an embryonic state. The
induction is founded upon the observation of a very
few cases, and we are by no means sure that the rule
we have obtained will cover the next case apparently
resembling them. It may be that the element which
we have detected is really the common element, and
that it cannot be resolved into anything more general.
All future cases, then, will certainly contain. this ele-
ment in its entirety, and our reasoning, so far as it is
founded upon its existence, will remain universally
true. In this case we have a complete induction ‘
rapidly formed; the science passes at once into its
purest condition, and we may henceforth make free
use of it for purposes of deduction. Such is the case
with the sciences of Algebra and Geometry already
referred to. The common elements of number and
form upon which they are founded admit of no further
reduction; wherever, then, these are present, the rules
founded on the science may, so far as these elements
are concerned, be applied with certainty. When,
however, we turn to Jurisprudence, we meet with a
very different state of things. To what extent may
we call this a science, and to what extent is it a pure
science properly so called; a science which is established
upon perfect inductions, and whose principles, there-
fore, may be freely applied by way of deduction’? It
may not be improper to point out here, for indeed the
38 THE NATURE or POSITIVE LAW. [111
fact seems to have been too much overlooked, that
the great instrument in the science of Jurisprudence,
as in every other science, is veriﬁcation. Now there
are two points at which error may creep in—ﬁrst in
making an induction, and next in modifying it again
for actual application to the facts of life. In either
case if an error has been made we shall become aware
of it by the happening of some evil. We may say
that all the practical sciences have for their object the
making of rules whereby men may avoid future evil.
When, therefore, we have pretended to apply the rules
given by a science and yet are confronted by evil
results, we know that a mistake has been made. How
is it, then, that in Jurisprudence men are so careful
about the rules and so little anxious about the evils
that result from them? What would be thought of the
science of Astronomy if it persisted in applying anti-
quated rules for the calculation of sidereal phenomena,
and if the world time after time set itself to watch in
vain for a transit of Venus or an eclipse of the Sun’?
Its professors would be scouted as impostors; the science
itself would be overwhelmed by the school of Oarlyle
with abuse not here to be hinted at; and Astrology
would soon have a companion in the limbo to which
it has been consigned. It may be useful to examine
this point more carefully by considering the two places
just mentioned at which error may creep in ; but as a
mere playing with general terms is waste of ‘time when
a science is still in an elementary condition, I shall try
to give as much deﬁniteness to my remarks as possible,
by presenting actual cases in the development of law.
III] THE INDUCTIONS OF J URISPRUDEN CE. 39
I have pointed out that Law enters upon the
scientiﬁc stage when men try to decide contested cases
by an observation of what has satisﬁed the common
sense of Right in similar previous cases. This will
become more clear when we have traced the early
development of Roman law at length. The rules-
gradually group themselves round some one con-
tinually recurring relation, and this is elevated into
a legal institution. The most general of these are
property and contract. \Ve rise a step higher when
we ask upon what these institutions rest, and enquire
into the nature of Law with its various related ideas.
These, then, as I have already said, form the ultimate
subject-matter of Pure Jurisprudence, and it is to-
their elucidation that the modern analytical school
has specially devoted its energies. But as these insti-
tutions have arisen gradually by the introduction of
one rule after another that gives to them more and
more deﬁniteness, so they are useful in practice only
as we deduce from them the same or similar rules.
These, as I have pointed out, are rules of strict law.
But assuming for the time that such rules, so far as
they go, are really true, and that they do correspond
with the opinions and practices of the greater part of
the community—in other words, that their application
will satisfy the common sense of Right—we must still
remember that they are not ﬁt for actual use. They
are rules of a pure science which have been arrived at
by dropping many of the facts of actual life, and they
cannot be used with safety except by help of an applied
science which has for its special object the reintro-
40 THE NATURE or POSITIVE LAW. [111
duction of these facts. We have already examined
this point, and we have seen that it is the special
business of rules of equity to reintroduce those con-
siderations which have been dropped in arriving at
the rules of law.
Thus, in calculating from the theory of dynamics,
the path that a cannon ball will take, in order to get
a correct rule for the elevation of the gun, it is a
matter of no small difficulty to reintroduce that resist-
ance of the air which was omitted in framing the laws
of motion, and at best only an approximation to this
can be made.
The same is true also in Economics. In applying
the principles of this science to cases of actual life,
our results will be totally wrong if we omit to take
account of those principles of morals (including there-
under customs) which really aﬁiect the conduct of
men, but have been dropped in arriving at the econo-
mical abstraction. Thus, given a particular rate of
increase of population, a particular rate of increase of
production from the land through the application of
capital, and a limited amount of land; with these or
similar data the economist would be able to deduce,
with some accuracy, the point to which the rent of the
land would rise or fall, the proﬁts which capital would
ultimately receive, and the limit at which the popu-
lation would arrive before starvation, if no other
check was devised, began to do its work. But we at
once see that these results, though doubtless not with-
out their value, would yet be untrue for real life,
because they would fail to include that large body of
111] THE INDUCTIONS OF JURISPRUDENCE. 41
moral considerations by which the conduct of men is
so powerfully affected. If, now, we enquire what are
the consequences of errors made in omitting to pre-
pare a pure science by means of the corresponding
applied science before using it in concrete cases, we
see that these are invariably produced in the form of
some calamity to those who employ the rule or to
others in some way connected with them. Thus a
rule of engineering into which the strength of wood
and iron has not been correctly introduced, or the
force of an extraordinary wind not allowed for, may
bring wholesale loss of life and destruction of property.
A rule of Economics, which is true for full-grown and
ﬂourishing communities, may, if embodied in legis-
lation, bring commercial distress and wide—spread
misery to a young colony or an antiquated state.
And this kind of error is not unusual in Law too,
and there it is attended by its consequent evils,
though not to the same extent as those other mis-
takes which we shall shortly notice.
Thus it has been remarked that the object of
Law is to carry into practical effect that sense of
Right which is felt, if not by all, yet at least by the
vast majority, of the, individuals of a community.
Now a principle of law is obtained by considering a
number of similar relations existing between these
individuals, or between these individuals and the
things, zle. the pieces of non-human nature, whether
animate or inanimate, by which they are surrounded.
By ﬁxing our attention upon some one aspect of these
relations we arrive at an abstract idea, such as that
42 THE NATURE OF POSITIVE LAW. [111
of ownership, and then, working from this as our
basis, we obtain a number of rules relating to owner-
ship which correspond more or less accurately with
the sense of Right existing on the same subject in
the breasts of the living individuals. If, now, we
proceed to put our rule into action immediately, with-
out any attempt at qualiﬁcation, we shall certainly
work a vast amount of injustice. In other words,
the legal ownership is often different from that which
the expectations of the parties requires. Were, then,
the person charged with the actual working of these
rules gifted with adequate knowledge and adequate
power, he would rectify this by accommodating the
rule to each particular case ; and sometimes, when the
injustice that would be perpetrated is very gross, and
the power allowed to the judge—for such is the ofﬁcer
in question—sufficiently large, this is actually done,
and hence arises the whole equitable doctrine of
trusts, of fraud, of mistake, etc. But owing to the
spread of ideas which we need not enumerate, this
ﬁnally becomes impossible. There is then nothing to
be done but to apply the strict rule of law ; instances
of petty injustice abound, and unless some remedy is
devised the punishment comes in a general suspicion
and distrust of the whole legal system. We may
_ brieﬂy recapitulate the results at which we have
arrived, as follows : —The process of applying the
principles of abstract science to cases of actual life,
consists in ﬁlling in as accurately as possible for each
particular case those details which were omitted when
we arrived at the abstract principle by the consideration
III] THE INDUCTIONS OF J URISPRUDENCE. 43
of a number of other similar cases. In Mathematics
this is done by taking account of such things as
friction, resistance of fluids, strength of materials,
etc., and we have the result in rules of gunnery, of
engineering, and so forth. In Economics this is done
by reintroducing those moral and other considerations
which have been omitted in forming the abstract
principles of the science, and we have the result in
rules of dealing between man and man, or nation and
nation, which may be adopted either by individuals
for their own guidance, or by nations in the form
of legislation. In Law this is done, or rather, if the
agents of law were sufficiently able, should be‘ done
by reintroducing those actual relations between in-
dividuals which have been dropped, indeed, in forming
the rule, but which go to make up a very considerable
part of the common sense of Right. When in any of
the above sciences this correction is not made there
results calamity, or at least inconvenience, which is
continually tending to calamity. Mistakes in the
rules of applied mathematical science bring us, with
our errors, face to face with physical nature, and the
result is certain disaster. Mistakes in the application
of economical science bring us face to face partly
with physical nature, partly with the outraged moral
nature of man, and from one or the other source
retribution will certainly come. Mistakes in the
application of Law bring us face to face with a wide-
spread feeling of injustice and indignation ; and this
may, in extreme cases, have consequences more dis-
astrous than in either of the preceding examples.
44 THE NATURE OF POSITIVE LAW. [111
It must be remembered that no allusion has been
made to mere errors in calculation. These do not
enter into our sphere. Thus a captain may mistake
his longitude, or a judge the meaning of his rule of
law, and the consequences will be as bad as though
the rule itself were improper for practical use. It is
clear, however, that this kind of error is to be avoided
by the proper selection of agents to work the rules,
and calls for no special discussion.
Assuming, then, that our rules of strict law do
actually correspond to certain facts in real life, the pro-
cess of using them to form a judgment consists of two
parts. We ﬁrst use the rules themselves by way of
deduction, according to the ordinary processes of logic.
To do this correctly merely requires, as I have just
said, some one who is skilled in the knowledge of the
law, and who can reason correctly. Mistakes do not,
as a rule, arise from this source. But it is not sufﬁ-
cient to argue correctly on this basis ; we must modify
our rules of law by rules of equity. This process is
of course well known, but its real signiﬁcance is very
often not grasped. In Rome the making of these
rules was the work of the Praetor and the Jurist. In
England it has been hitherto the work of the Court
of Chancery; hence, as I have before remarked, the
rules which have grown up with regard to trusts as
affecting property, and fraud and mistake as affecting
contract. But the power of Courts of Equity has no
ﬁrm foundation. They lose in course of time their
immediate outlook into real life. Their rules remain
valuable indeed as the substance of Applied Law, but
III] THE INDUCTIONS OF JURISPRUDENCE. 45
they have lost the power of producing new ones.
Equity can now be improved only by the Legislature,
and the fear of the elasticity of the Chancellor’s con-
science makes us practically forego the beneﬁts of
this method of legislation. It is not difﬁcult to
see how recent disputes as to ownership, affecting
large classes of persons, would never have arisen had
the opportunity or the desire of making rules of
equity been in the hands of those who had the
administration of the law. The doctrines of speciﬁ-
cation and of trusts consistently applied, would have
regulated from the beginning rights which have since
become the battle-ground of factions. I shall try to
show later on, that a sanction is not of the essence of
a law governing human relations. It is a mark of
the second, not of the ﬁrst order. But in the vast
complexity of human affairs it is necessary that many
of them should be regulated by general rules. When,
however, the determination of these rules is left to
the strife of political parties, this is often merely a
sign that Jurisprudence has either neglected, or been
hindered from doing, her proper work. It is a
matter, indeed, involving problems, whose solution
demands all the efforts of the students of J urispru-
den ce continued through many generations. There has
been hitherto one such school in the world, the school
of which Papinian, Paul, and Ulpian are the brightest
ornaments, and the inﬂuence it has had is sufficient
proof of the truth of what we are urging. Sir Henry
Maine said many years ago, that the great importance
to us of the Roman Law lay in the fact that we
46 THE NATURE OF POSITIVE LAW. [111
approach in our own law nearer and nearer to its
conclusions; but we can only do this consistently as
We copy the method of the Roman J urists themselves,
and as we see that rules of law are the result, not of
an agitation, but of a science. We may, indeed, con-
gratulate ourselves that we have the Roman Law as
a model, but it is not our goal. The improvement
in the deﬁnition of ideas, and the change in human
relations, make it impossible for its decisions to
satisfy us in all points. Our motto must be that put
forward by Ihering, “ Through the Roman Law, but
beyond it ;” and if we can use the same methods in
thus going beyond it, which the Romans used in
making it, Jurisprudence may again have the most
beneﬁcent effects upon human society.
So far we have been considering the error that
may arise when we apply a rule of law, correctly in-
deed, but without allowing for those equitable con-
siderations which alone make it tolerable in practice.
We have assumed that the rules and principles of
Pure Law do really correspond to actual facts in the
legal relations of men, and that they may be correctly
applied over the whole area where systems of law
based upon them are in force. In pointing out that
this correctness may be entirely wanting, and that the
gravest miscarriages of justice may thereby occur, I
am of course only repeating the criticisms which Sir
Henry Maine has from historical considerations be-
stowed upon the Austinian analysis. Since, however,
this is of the greatest importance for my argument, I
shall take some trouble to make the matter perfectly
III] THE INDUCTIONS OF JURISPRUDENCE. 47
clear, and to determine what is the real effect of this
error upon the science of Jurisprudence. I shall follow
Sir Henry Maine in making a comparison here, as I have
done before, between Jurisprudence and the sciences of
Mathematics and Economics.1 The science of Algebra,
which is the best example of a pure science, is founded
upon one element only, that of number. Wherever,
then, in nature there exists a separation of parts, either
in reality or in idea, there we may apply the science
of Algebra without fear that our results will be incor-
rect so far as they are founded merely upon the num-
bering of such parts ; for indeed the uniformity of our
experience with regard to number in the past, leads us
to conclude that the same will hold good for the future,
with a force of conviction which has very generally
led men to attach to the results of Algebra (and also
of Geometry) a necessity which transcends the sphere
of experience. But this, of course, merely means that
wherever in space or time there may be found to exist
bodies similarly capable of separation into parts, or, in
other words, endowed with the quality of number, these
results will be true with regard to them also. The
value of Algebra as an abstract science consists, then,
in‘ the fact that its one constituent element is always
present in those cases to which we wish to apply it.
We may say, indeed, that the one test in the case
of a new science, such as Political Economy, which
seeks to call in Algebra to its aid, is whether the facts
about which it treats contain the element of number,
and only so far as they do this are the results founded
1 Early History of Institutions, p. 360.
48 THE NATURE OF POSITIVE LAw. ' [m
on Algebra correct. If, now, we proceed to apply the
same test to Economics regarded as a pure science, we
see at once that it lacks this quality of universality
which is possessed by Algebra. Taking a general
view of a large number ‘of cases in which commercial
intercourse goes on between man and man, it abstracts
from them the principle that man in such intercourse
is guided by the desire of making as large a proﬁt as
possible. ‘Of course I do not mean that this is the
only ultimate element in the abstractions of Econo—
mics, but it is a very important one. Assuming, then,
the existence of this element, and combining it with
others, rules are framed' for the purpose of facilitating
such intercourse, and, whether embodied in legisla-
tion and enforced by the power of the state, or only
acknowledged and enforced by public opinion, they
become operative in actual life. The tendency next
is to apply these rules, based upon our experience of
that portion of mankind with whom we are best ac-
quainted, and to whom, owing to the allowances that
have been made for other considerations, they really
are applicable, to other portions of mankind of whom
we know little, or at least with regard to whom we
overlook the fact that this ultimate constituent ele-
ment is wanting, and is indeed replaced by another.
This occurs, as is now universally recognised, when
we apply our doctrines of Economics, founded upon
the fact above mentioned, to races of men who are
governed in their commercial intercourse little if
at all by the desire of gain, but almost entirely
by the force of custom. \Ve see then that the differ-
111] THE INDUCTIONS OF JURISPRUDENCE. 49
ence between Algebra and Economics exists not in
any supposed necessity in the one, as opposed to the
want of it in the other, but in the fact that all the
cases to which we usually apply Algebra really con-
tain the element upon which it is founded, while many
of the cases to which we apply Economics are found
to be wanting in its ultimate element, as at present
understood, and so our results are vitiated. So far,
however, as that ultimate element really does exist
in actual cases, the conclusions of Economics are as
universally true as those of Algebra ; the difference lies
only in the smaller number of practical cases to which
they are applicable. Economics is the science of
wealth, and though we may wish to apply it to the
dealings of all mankind, yet as its present abstractions
are true of only a portion, we say that it has but a
limited, while Algebra has a universal, application.
The fact is that Algebra is only universal so far as the
cases to which we apply it contain the element of
number; and in the same way Economics is just as
universal so far as the cases to which it is applied
contain its own ultimate element, that is, so far as
they are cases of the commercial intercourse of men
influenced only by a desire of gain.
We are now in a position to estimate the influence
of the source of error which we are considering on
the science of Jurisprudence. We have already seen
that when our abstract principles are admitted to hold
good, mistakes will arise in actual practice, owing to
our failure to allow for the less general elements which
have been omitted in forming the abstraction. With
E .
50 THE NATURE OF POSITIVE LAW. [III
such mistakes we are not now concerned, but with
those which are made when we apply our abstract
principles to cases, in which the ultimate elements
upon which they rest are wanting.
Now the‘ ultimate element upon which the science
of Jurisprudence, as established by Austin, rests, is in
brief as follows :——Law is a command, issued by a
sovereign and enforced by a threat of evil to ensue
in case of disobedience ; by these commands are duties
imposed and rights thereby created ; and men submit
to have their rights and duties regulated in this way.
From this ultimate fact in the history of certain
portions of mankind, the science of Jurisprudence
obtains vthe ideas of Sovereignty, Law, Right, Duty,
and Sanction. When, however, a set of men who are
imbued, whether consciously or unconsciously, with
these notions, happen to be placed in authority over a
completely different race of men, and proceed to put
in practice the rules which they have derived from
these ultimate elements, they may fall into the most
perilous mistakes. The rights of the latter, instead
of corresponding to a law issued by a central autho-
rity, may correspond to customs which adapt them-
selves almost insensibly to the requirements of those
who practise them; and these customs, moreover,
may possess in actual practice a vagueness or elas-
ticity which alone makes them tolerable. The effect,
then, of applying to such races the rules formed upon
abstract elements of a totally different kind, has been
described by Sir Henry Maine. These customs are at
once changed into the rigid form of law; the rights
III] THE IN DUCTION S OF JURISPRUDENCE. 5 l
which they confer and the duties which they impose,
being bound to assume a deﬁnite shape of some form
or other, assume one differing very much, perhaps,
from that to which those who have been brought
up under these customs are habituated; and the
result is felt in a sense of violated Right, which ends.
either in mere individual vexation or in national
revolution, according to the character of the people-
and the strength of the central authority. Cf course
unless and until such a catastrophe occurs, we may
say that the system of law is actually in force, and
that it is really founded upon the ideas above men-
tioned. But the study of Law can surely lay no-
claim to be called a science, if it is content to have its
rules admitted only to this dc facto position. A
mariner may make a wrong calculation and yet not
suffer shipwreck; an economist may procure the
enactment of a bad rule of trade, and yet produce no
widespread distress; a statesman may enforce law
which is at variance with the sense of Right inherent
in the people, and yet not arouse a revolution. None
the less in all these cases has an error crept into the
practical operations of the science, and in spite of all
the positive laws that ever existed, a mistake may be
made in the practical application of Jurisprudence,
just as much as in Navigation or as in Economics.
The only difference exists in this. The error of the
sailor may bring him into contact with the merciless
force of Nature, and then his de facto rule is seen
in its true light, lacking the element of reality: the
error of the economist may bring him into contact
52 THE NATURE OF POSITIVE LAW. [III
with the force of Nature, and also with the outraged
nature of man, and, if such be the case, his rule is
recognised at once as bad, however great be the
authority that laid it down and made it positive.
And why then, when we come to the province of
Jurisprudence, are we to ascribe that respect to posi--
tive rules which is denied in all other cases? Merely
because the error, as a rule, ends only in human vexa-
tion, a vexation which is seldom strong enough to
raise a storm that shall recoil on the author of this
positive law, and prove in Nature’s own fashion that it
is positive injustice, are we, then, to limit the province
of Jurisprudence to these positive rules and forbid it
to enquire continually if their foundations are correct ?
Assuredly not. Of course the position I am now
assuming stands in need of careful qualiﬁcations. The
imperfections of human nature require that a strong
check should be imposed upon it, and it may be
necessary that the sovereign power should retain a
more or less direct control over Law; but this is no
reason why we should raise positive law to that
pinnacle in the science which it now enjoys, and why
we should forbid Jurisprudence to set about her
proper business, and to seek to regulate the relations
between man and man, in such a manner that they
may best be brought into harmony with the common
sense of Right.
So far we have conﬁned ourselves to considering
the substantial injustice that may be done, by apply-
ing the Austinian conception of Law to a community
which has hitherto regulated itself in an entirely
III] THE IN DUCTION S OF J URISPRUDENCE. 53
different manner. It is, of course, merely a corollary
from this to point to the effects of applying the other
principles of Pure Jurisprudence. As the chief ex—
amples of these I have referred to the great institu-
tions of Property and Contract. It is notorious,
however, that these have no character of universality,
but are of purely historical growth. I need only
point once more to Sir Henry Maine’s writings, for
conﬁrmation of the injustice that may bedone when
these ideas are applied to a people whose legal
relations have hitherto been of a totally different
kind. We shall not be far wrong, moreover, in sur-
mising, that much of the bitterness that exists in
the hearts of Irish peasantry towards England has
arisen from the fact, that the ideas of English Pure
Jurisprudence have been applied amongst them in
many cases in which they really had no counterpart
in the actual relations existing between man and
man.
The position then at which we have arrived, and
which alone concerns us at present, is in brief the
following :—There has been set up of recent years
a Science of Jurisprudence which, in its purest form,‘
depends upon certain elements which are assumed to
exist in every legal relation between man and man.
By abstracting these elements, and subjecting them
separately to a careful scrutiny, we are able to grasp
them with a clearness which is of the greatest value,
when we consider their effect in new and similar
legal relations. It must, however, be carefully noticed,
that these new legal relations must be similar to the
54 THE NATURE or POSITIVE LAW. [111
old ones from which these elements were taken, to
such an extent as actually to contain these elements
themselves, or .at least elements so resembling them,
as to avert the chance of serious error arising from
regarding them as identical. So far, then, as these
conditions are satisﬁed, this new science of J uris-
prudence may be safely used to assist us in actual
practice, and the conclusions at which we arrive by
its means will be absolutely true, so far as the
elements upon which they are based actually exist.
In this way, and to this extent, our science of Juris-
prudence is universally true, but that it is universally
true when applied to a different class of men, is not
to be maintained ; for here the elements upon which it
is based are probably wanting, and the conclusions to
which we should be led will conflict with their own
sense of Right.
Thus Austin, conﬁning his attention to certain por-
tions of mankind, found in their legal relations certain
common elements "which he formulated in the above
mentioned series of terms—Sovereignty, Law, Sanction,
Right, and Duty. Descending then to more particu-
lar relations, he found other elements which he
examined and described as Ownership and Servitude ;
and had his task been ﬁnished he would have included
also Contracts, either generally or in their particular
forms. Upon these ideas there was founded a pure
science of Jurisprudence, which, owing to the autho-
rity attaching to its author’s name, was credited with
a character of universality, not only for the races of
mankind from among whom its data were taken, but
II I] THE IN DUCTION S OF J URISPRUDEN CE. 55
also for the world generally. Happily, however, our
experience was extended, and the illusion dispelled, by
the works of Sir Henry Maine; for continental writ-
ings, though they might have contributed to the same
result, have certainly had little inﬂuence among us.
In early Rome it is probable that there was no central
authority at all capable of constraining a member of
the confederation. In ancient Ireland it is certain
that Self-help was regarded as the proper redress
for violated rights, and it is a curious coincidence
that in the same country the question of employing
similar means should have again arisen. In modern
India, until the discontinuity caused by English rule,
law was evolved and enforced in each village sepa-
rately, without any regard to the central authority.
And if to this it be answered that the examples
offered are those of barbarous or only semi-civilised
peoples, we may reply that civilisation is only a rela-
tive term; and, assuming that legal ideas tend every-
where to assume the form they now wear in western
countries, even the civilisation of these is only tran-
sitory, and may develop into a form of society to which
the elements of Austin’s analysis will be as strange as
they would have been to our own savage ancestors.
Moreover, an English jurist cannot afford to forget
that the science of Jurisprudence does not exist for
his own country only, but seriously affects many of
these semi-barbarous peoples; and though it may be
the duty of a higher governing race to instil some of
its own ideas into a lower subject people, yet this can
only be done to a limited extent, and in all doubtful
56 THE NATURE or POSITIVE LAW. [111
cases, their own sense of Right should be taken as the
test of Law.
The great question then which lies before us is
concerned with the position which we shall assign
to the Austinian analysis. The answer to this I shall
not attempt at present. It will be sufﬁcient here to
give the question expression, and to mark out the
scope of our enquiry. That the strict application of
Austin’s ideas is out of the question, is of course
admitted. The practical carrying out of the idea of
sovereignty is prevented by public opinion or by fear
of rebellion. Shall we say, then, that the ultimate
conception of Law does indeed correspond to facts, but
requires to be limited in practice by special modiﬁca-
tions, or by a kind of political equity; or shall we say
that the idea of Law is based upon a wrong induction
and requires to be changed before it is capable of
general application at all’? In other words, does the
error which would arise from a use of Austin’s ideas
belong to the ﬁrst or second class of errors that we
have enumerated; does it, that is to say, come in
through too rigorous an application of a correct prin-
ciple, or does its source lie still further back, and
spring from the incorrectness of the principle itself ‘.3
To this enquiry it will be our business to address our-
selves, and the answer will be deduced from a general
consideration of legal conceptions, both in ancient and
in modern times.
There still remains, however, one point to be
noticed. So far as we have got at present, the science
of Jurisprudence has never passed beyond the empiri-
III] THE ‘INDUCTIONS OF JURISPRUDENCE. 57
cal stage. I have deﬁned it as the science which has
for its object the formation of rules for the guidance
of human affairs in such a manner as to satisfy the
common sense of Right. But the only method which
has been suggested so far for the formation of these
rules, is a careful examination of past cases in which
this sense of Right has been on the whole satisﬁed.
This, however, as is well known, is a slow process ; we
want to go a step further. What was the common
element in those cases which recommended them to
general approbation ? If we can ascertain this we shall
have a principle to guide us for the future. We need
no longer search for the external marks in past cases,
and enquire if these are present in a new one. We
shall have arrived at the essence of the matter, and
being in possession of this, we may strike out a bold
course for ourselves. If we can discover such a prin-
ciple, we shall see the same change worked in the
science ‘of Jurisprudence, that Kepler and Newton
worked in the science of Astronomy, when‘ they dis—
covered the paths of the planets and the law of Gra-
vitation. Till then an eclipse had been foretold with
much pain and labour by a careful comparison of past
eclipses. In future only such reference to the past
was necessary as might determine the constants in
the dynamical equations. For the rest astronomers
might safely launch out into predictions, and ﬁnd these
invariably veriﬁed by the results. The climax was
reached, as is well known, in the discovery of Neptune.
Is it possible, then, to discover such a fundamental
principle in Jurisprudence, and can we, armed with
58 THE NATURE OF POSITIVE LAW. [111
this, launch out safely in the formation of legal rules,
knowing for certain that their application will satisfy
the general feeling of Right’.Z It is well known that
two such attempts have been made, and each has been
followed by a rapid increase in the number and quality
of such rules. The ﬁrst was the introduction of the
Law of Nature by the Roman J urists ; the second, the
establishment of the principle of Utility by Bentham.
It would be wrong, however, to place these upon the
same level. The law of Nature cannot be said to
have given to the Roman J urists a principle according
to which they could work. Its main effect was to
break down the rigid legal distinctions which had
grown up in course of time, and to induce the J urists
to bring their rules into conformity with the facts of
life. In other words, we may say that it rendered
possible the free extension of Applied Law. The dis-
tinction which I have been at some pains to estab-
lish, then, seems to give us a sure test as to the real
effect of the Law of Nature. It is now well known
that its origin was historical. It arose from the jus
geutium which the Praetors had been applying for
generations. But what the Praetors had done grudg-
ingly and of necessity, that the J urists, upon the
recognition of this principle borrowed from Greek
philosophy, did freely. In other words, the Praetor
started with his rules of Pure Law, that is, with
the jus strictum, and only corrected these by
rules of Equity when the injustice which they pro-
duced was too gross to be tolerated. He was still
trammelled by the importance assigned to Positive
III] THE INDUCTIONS OF JURISPRUDENCE. 59
Law, and had not realised that Law exists for Man,
not Man for Law. But when the J urists discovered
that rules of Law must be adapted to Nature, they
meant nothing more by this, than that Jurisprudence
should take the position which we have been attempt-
ing to defend for it. It is not the science of Positive
Law, fbut the science which deals with the regulation
of legal relations in accordance with human needs.)
It must have a continual outlook upon the actual
affairs of life. By reference to these it must keep
broadening the rules of strict law; and when this is
not sufﬁcient, it must frame rules of equity to correct
their strictness. Thus the recognition of the Law of
Nature gave the J urists no new principle by which
they might make rules ; it only altered their position
with regard to the two departments of legislation.
Having adopted this guide, they abandoned all respect
for ancient rules as such ; these were founded on im-
perfect inductions, and the sooner the inductions
were completed and the rules improved the better.
Further, too, it was to be deﬁnitely recognised that
the rules of strict law never could be applied in actual
life without correction. Hence rules of equity must
not be established grudgingly; but, with due regard to
regularity in human affairs and simplicity in the law,
they must be allowed wherever they are necessary, in
order that legal decisions may fulﬁl their purpose and
harmonise with Justice. But when we enquire what
‘principle the Roman Jurists adopted in the formation
of new rules, we shall ﬁnd that when they were con-
scious of a principle at all, it was the only one which
60 THE NATURE OF POSITIVE LAW. [III
has ever been advanced by practical lawyers,—-the
principle of convenience or of utility. I must again
emphasise the twofold manner in which rules for future
guidance are formed. The ﬁrst is the direct appeal
to experience, such and such a decision or custom has
satisﬁed men in the past, hence such and such a rule
will satisfy them for the future. This was the method
followed in the introduction of much of the Roman
equity law. All the jus gentium, properly so called,
had its origin in this manner. The Preetor takes a
more extended view of human relations than the old
Civil Law, and he introduces rules which have actu-
ally existed elsewhere. But the other method consists,
as has been already pointed out, in enquiring what is
the ultimate cause which has made those rules and
customs acceptable. When this has been once ascer-
tained, we shall be able to frame new rules freely. It
is obviously wrong to say that the Roman J urists
found such an ultimate cause in the Law of Nature.
So far as this represents any solid principle at all, it
represents the principle of appeal to the most exten-
sive View possible of actual human relations in the
past. Whatever we have more than this, is merely
the opinion of the person using this law as to what
is really right and just; in other words, it inclines
him to look away from the decisions of strict law and
bring himself once more into direct contact with real
life. But in this state of things, if actual experience
fails him, what principle is he to take as his guide?
Here, as I have remarked above, the Roman Jurist
applied, without properly realising its signiﬁcance,
III] THE INDUCTIONS OF J URISPRUDENCE. 61
the famous test which Bentham ﬁrst formulated.
\Vhen it was apparent that the application of a.
rule of strict lawwas producing manifest injustice, he
allowed a deviation from it “ cause, utilitatis.” In
other words, he found that by so doing, general con-
venience would be best consulted, and this seemed to
him sufficient justiﬁcation. The influence of the Law
of Nature was therefore twofold. In its earlier his-
torical condition, when it was acted upon, though not
yet formulated, it allowed a freer use of the appeal to
past experience for the formation of new rules ; in its
later stage, when it had been consciously received as
a guide, its whole effect was expended in inducing
the J urists to look directly at human relations and not
to keep their attention too exclusively ﬁxed on posi-
tive law. In other words, it predisposed the Jurists
to adopt a right course, but it gave them no principle
to guide them in that course. I have said that the
only principle which has ever been accepted by prac-
tical lawyers is the principle of Utility. It is needless
to remark that principles are acted upon long before
they are formulated and so brought within the sphere
of general consciousness. The great difference, how-
ever, is, that when they have once been thus realised,
their usefulness is enormously increased. It was the
great merit of Bentham, then, that he gave distinct
expression to the principle of Utility. In itself it is
sufficiently simple. Its whole substance is contained
in the following words :—
Of two opposite methods of action do you desire to know
which should have the preference? Calculate their effects in
62 THE NATURE OF POSITIVE LAW. [m
good and evil, and prefer that which promises the greater sum
of good.1
But whereas it had been applied hitherto meagrely
and tentatively, it now became a principle which was
to guide the Jurist at every step. It is by this alone
that Jurisprudence is raised to its proper dignity
as a science. We are no longer compelled to follow
blindly the decisions and customs of the past. We
now know that these, so far as they were good,
derived their excellence from their accordance with
the principle of Utility. It is the same principle,
then, that we must use in devising rules for the
future. I have already likened the introduction of
this principle to those great discoveries which placed
Astronomy upon its present deductive foundation,
and I remarked that its followers must still keep
themselves in contact with actual facts in order to
determine the constants in their equations. The
same observation applies with increased force to
Jurisprudence. We have indeed vgot a principle;
we have substituted a bold course of calculation for
the old timid process of guessing, but the elements
of our calculation are the facts of actual life. As
a rule these can only be taken from experience of
the state of human relations in the past and in the
present. It is the recognition of this fact that re-
quires in the Jurist a large acquaintance with actual
life. When we leave this basis of actuality we sever
the science from human interest ; and its professors, as
is well known, soon fall into discredit.
1 Theory of Legislation, p. 87 of Hildreth’s translation.
IV] THE INFLUENCE OF POPULAR IDEAS. ' 63
CHAPTER IV.
THE INFLUENCE or POPULAR IDEAS ON JURISPRUDENCE.
IN the last chapter I may, perhaps, be thought to have
laid too much stress upon that province of Jurispru-
dence which is concerned with the amendment of old
rules and the discovery of new ones, and it may be
said that the proper object of Jurisprudence is exposi—
tion and not discovery. This, however, I take to be
a fundamental error, and it seems equivalent to saying
that we may, indeed, seek to improve the current text-
books in Dynamics, but must not seek to alter their
substance. Every science, in fact, has two classes of
adherents, those who seek to extend it and those who
seek to put it into practice; when the former class
have discovered either a new principle or a fresh
application of an old one, and have thoroughly
veriﬁed it, it is adopted by the latter class for prac-
tical purposes. There is, indeed, no essential reason
why in Law too the Jurist should not provide rules
for the lawyer. The literature of the science would
in this case consist of three kinds of works—original
investigations, expositions of received principles, and
mere collections of rules. A work of the last kind
corresponds to an ordinary book of practice ; a work
64 THE NATURE OF POSITIVE LAw. . [W
of the second kind would be a volume of Applied
Jurisprudence as I have above deﬁned it; a work
of the ﬁrst kind would, according to received notions,
be removed from Jurisprudence entirely and put into
the science of Legislation; for there is this peculi-
arity in Jurisprudence, - that authority guides its
practitioners rather than principle, and that special
measures have to be taken to ascertain this autho-
rity. By authority, I mean of course the approval
of some other person or persons than the professors
of the ‘science, for in practice we must always follow
authority of some kind. At the only time when
Jurisprudence was really in a satisfactory state this
interposition of a foreign authority between science
and practice did not exist, for such was the case in
the creative period of Roman Jurisprudence. But in
general, owing to the peculiar nature of the subjects
with which the science deals, it is impossible to go
direct to its professors for information, and we have
to go to an intermediate authority instead. Some-
times, indeed, this authority cannot be said to be
intermediate, for there is no science beyond it ; it is
then the ultimate source of law, and legislation in this
stage is detached from principle and is either selﬁsh
or merely empirical. But at the‘ present day there is
frequently an appeal to science in some form or other,
and the department of science to which we appeal is
called the science of Legislation. According to this
division, everything appertaining to law as between
the Sovereign and the subjects is placed in the science
of Jurisprudence ; and everything as between the men
IV] THE INFLUENCE OF POPULAR IDEAS. 65
of science and the Sovereign in the science of Legis-
lation. This, however, is a view which I conceive to
be dangerous to the ultimate destinies of Law. We
must allow Jurisprudence to cover the whole ﬁeld of
Law, both the discovery of new principles and the
exposition of old ones. The question of whether an
authority should be interposed between science and
practice, and the form in which this should be done, is
of the greatest practical importance. In recent times
this authority has been universally allowed, and it
has been more and more vested in the Sovereign
directly, taking that word, of course, in the sense
given to it by Austin. If this is to continue, the
great question will be how to make the Sovereign
himself dependent upon Jurisprudence. To be quite
clear, I may say that principles of law in the ideal
state are discovered by the professors of J urispru-
dence ; the ofﬁce of the State is simply to place upon
these a mark by which they may be known in prac-
tice. This, for instance, was done when an imperial
decree pointed out Papinian and certain others as the
authorities by whom the judges were to be guided.
I now propose to consider certain differences in the
juridical names current in Germany and in England,
and to point to a fundamentally different conception
of Law which is closely connected with them. The
subj ect, of course, has attracted notice before, and is
discussed by Austin in an interesting note (i. 293),
but I am not aware that it has been dealt with in
the manner which I am now about to suggest.
Jurisprudence is a science which‘ deals with the
F
66 THE NATURE OF POSITIVE LAW. [1v
actions of men, and hence we may reasonably expect
that when it arises among different peoples, and is
therefore founded upon different states of fact, it will
in its development pursue somewhat different direc—
tions. Moreover, where a science deals directly with
the actions and interests of men, its early origin is
obscured by the birth of popular ideas upon these
actions and interests, and when the science ﬁrst be-
comes conscious of its functions it ﬁnds that its ﬁeld
has already been occupied and that its ideas have
received names which are in everybody’s month.
These names, however, only represent the general
vague idea which is present to an ordinary mind, for
it is well known that an idea, unless it corresponds
to some concrete shape, never does assume a strictly
deﬁnite form in the mind without much labour and
careful examination. Those, indeed, which correspond
to concrete shapes may be handled by all intelligent
men with accuracy, for the idea in the mind of each
man corresponds to the same external thing, and no
mistake is made when we translate our ideas into
actual life. But when our idea merely corresponds
to an abstraction, and when, although it is em-
bodied continually in actual life yet such embodiment
takes place under many different shapes, in this case
the idea takes different forms in the minds of different
men, and hence mistakes continually occur when they
attempt to translate these ideas into actual life.
An example will make this evident. If one man
agrees to sell a horse to another, no particular horse
being present or being thought of, there is no doubt
IV] THE INFLUENCE OF POPULAR IDEAS. 67
that the agreement can be properly carried out, for
though the purchaser may object to certain qualities
in the horse which he receives, yet there can be no
doubt that he has got what he bargained for as soon
as he receives a horse of any kind. But if the further
condition of the sale is that he shall pay whatever
price may be fair, there is now great risk that the
completion of the transaction will not satisfy the
expectations, that is, will not realise the ideas of
both parties; for whereas each had a sufﬁciently exact
notion of a horse, yet each may have very various
notions as to a fair price. N ow this example illus-
trates what I wish to point out. The natural objects
which we see around us, numerous as they are, are
yet capable of exact discrimination, and popular
language as it grows up corresponds to these dis-
criminations, and is therefore fairly correct. Natural
sciences may object to sundry popular classiﬁcations
and may discover many distinctions that have been
overlooked. They have, however, a fair number of
accurately used expressions with which to begin, and
can immediately lay a foundation of some stability.
When, however, our science deals not directly with
physical objects but with the actions of men, a great
difference is discernible. The qualities which belong
to these actions are never reproduced in exactly the
same form, and as we get our ideas of these quali-
ties from the concrete shapes they assume, the
ideas vary in the minds of individual men. Hence,
when words arise corresponding to these ideas,
we are liable to continual confusion in the use of
68 THE NATURE OF POSITIVE LAW. [Iv
f
them. And the effect of this is further intensiﬁed also
in the case of the sciences which deal with human
actions. For whereas a natural science not only
starts with some ideas of sufﬁcient accuracy, but is
also allowed both to deﬁne them more exactly and
to discover new ones at pleasure in the dispassionate
secrecy of scientiﬁc research, with the moral sciences
it is quite different ; they, on the other hand, not only
‘have to use names of elementary ideas which have no
precise meaning, but the close relation which they
bear to actual human interests long prevents them
from rising out of the arena of popular passion. Un-
willing to forfeit the beneﬁt of immediate influence
on mankind, it is long before they are subjected to
purely scientiﬁc treatment. They remain continually
upon the low level of actual life, where it is impos—
sible to shake off the views that clung to them at
their birth. Hence not only do the actual facts in
which a science takes its rise powerfully inﬂuence its
direction, but as it is to these early generalisations
from facts that names are given, the science is inﬂu-
enced by them through these names long after their
proper influence has died away. Jurisprudence gives
a striking illustration of these remarks, and I shall
point out the inﬂuence which different states of fact
have had upon its development in England and in
Germany, and offer some remarks upon the manner
in which such inﬂuence seems to have been perpetu-
ated by popular language.
The fundamental ideas which we can immediately
recognise in juridical notions are those of Law in
IV] THE INFLUENCE OF POPULAR IDEAS. 69
general, of particular rules of Law, of legal Rights
however conferred, and of the allied notion of that
which is morally Right, or which is Just. We have
thus four ideas, three of them belonging by com—
mon consent to the sphere of Law proper, and one of
them, according to present notions, removed from
Law and placed in the sphere of Morality. And yet,
putting aside for the present the synonym “just,” we
have in English only two words, Law and Right, to
denote these four notions, and in order to distinguish
between them we have to use periphrases of various
kinds. In Germany the scarcity of words is even
more apparent. The word Rccht, which corresponds
to our general word Law, has to do duty not only
for our word Right, but also for one other meaning
at least of the word Law. Thus Law in general is
Recht, the privilege which a man legally enjoys is
called Recht, and the conformity of this privilege to
public opinion is also Recht. The word still lingers
when we come to our fourth idea, for a rule of Law is
a Recht-sottz, unless it happens to be the result of
direct legislative enactment, in which case it is a,
Gesetz, corresponding to our Statute. It is easy to
comprehend how this inclusion of certain legal ideas
in one country under the dominant term Law, and in
the other country under the dominant term Recht,
tends to give from the very beginning a different tone
to legal speculation. In England Jurisprudence is
the science of Law, and while Law may be said to
contemplate generally certain relations which men
bear to each other, denoting in its most general sense,
70 THE NATURE OF POSITIVE LAW. Irv
that is, the juridical side of these relations, yet it
connotes in the English mind the commands which
govern them, and indeed in'its more usual and restricted
use denotes these commands merely. Jurisprudence,
then, to an English mind deals with the relations of
mankind as governed by the commands of a sovereign.
In Germany, on the contrary, Jurisprudence is the
science of Right, and while Right may be said to con-
template generally certain relations which men have
to each other, to denote, that is, the juridical side of
these relations, yet to the German mind it cannot fail
to connote at the same time both the claims that one
man hence derives against another, and the coinci-
dence of these claims with the common sense of justice.
We thus see how Jurisprudence, when once planted on
English soil, took a form essentially different from that
which it wears on the Continent. We cannot express
this better than by saying that in England J urispru-
dence is, as Austin with so much labour showed, the
science of Positive Law; in Germany it is the science
of Justice. In other words, as Positive Law aims at
carrying out primarily the commands of a sovereign,
and as Justice aims primarily at carrying out what is
agreeable to the national conscience, or, in other words,
what is in accordance with national customs, we may
say that Jurisprudence in England deals chieﬂy with
Law as springing from Legislation, and in Germany
with Law as springing from Custom. A slight reference
to historical considerations will show how natural this
‘ distinction is. Whatever validity may have been as-
cribed to custom in Saxon times, this was largely oblit-
w] THE INFLUENCE or POPULAR IDEAS. 71
erated by the rapid centralisation of the kingdom, due
ﬁrst to the spread of feudalism and then to the rise
of the royal power. The growth of feudalism carried
with it the transfer of judicial power to the lord,
and this passed easily to the sovereign. Even thus,
however, custom might have remained as the great
source of Law but for the conquest of the kingdom
and the introduction of a foreign legal system. It is
true that this system referred chieﬂy to landed pro-
perty, but the great preponderance of this form of
property at that time renders the circumstance of
little importance. Although the ancient customs did
not lose their validity, yet it is matter of common
history that the new ideas, however foreign they
might be to the spirit of the people, rapidly pervaded
all juridical relations. Thus there soon arose in
the minds of the people the idea, that Law was a
thing dependent on the will of the sovereign, and not
necessarily, or perhaps even as a rule, coincident with
Justice. A man still had privileges of a kind, he still
had Rights ; they no longer sprang, however, as in
old times, from his ancient customs, which coincided
with his idea of Right, but they were such as the new
Law chose to allow to him. And hence the word
Right, which in Saxon times was used like the German
Rccht, gave place to the word Law.
In England, therefore, owing to historical circum-
stances, a separation took place between the two
ideas of what a man is allowed to do by public
opinion and what he is allowed to do by law; a dis-
tinction valuable indeed to the analytical jurist, but
72 THE NATURE OF POSITIVE LAW. [IV
resulting like other scientiﬁc ideas from experiments
in corpore wild. The lawyers, who were interested in
the new order of things, brought no moderating in-
fluence to bear upon them, and hence was effected in
England the proverbial separation of Law and Justice.
In Germany, matters took a different direction. There
was no such rapid rise of the sovereign as in England,
and consequently no centralisation of legislative
power ; the feudal princes, moreover, having no desire
to introduce a foreign system of law like that which
animated the Normans in England, to a large extent
respected the ancient customs. This difference has
recently been strikingly illustrated by the much more
extensive traces which have been found of the village
community in Germany than in England, and it is
notorious that while in the latter country feudal
rules were applied almost universally, the peasants
of Germany still retained their local customs for the
regulation of property in land. This was the case
throughout the Continent generally. The matter has
been recently reviewed by Sir Henry Maine,1 and he
concludes by saying: “ It was by an exception and
a remarkable one, that in our country the land-law
of the nobles became the land—law of the people.”
Although then the English judges professed to be
guided by custom, yet this seems to have been recog-
nised as mere profession. What struck the popular
mind is exactly the same fact as that which seemed so
important to the mind of Austin ; they derived their
power directly from the king. But in Germany, not
1 Early Law and Custom, 1). 341. '
IV] THE INFLUENCE OF POPULAR IDEAS. 73
only were the customs of the people really respected,
but another cause prevented the growth of an imme-
diate and exclusive connection between Law and the
Sovereign. This was the open introduction of the
Corpus Jum's as a source of Law. The exact effect
which this has in the past had, and which it ought
now to have, upon German law has been a subject of
much discussion in recent years, and I shall have
occasion to return to it in another place; but it is
sufficient here to point out the inﬂuence which it has
had upon erecting Science into an independent source
of Law. While then in England, the tendency was to
see this source in the king only ; in Germany, Custom
and Science were primarily recognised. But Custom,
as I have said, is in early times identical in the
popular mind with Justice; and the rules of Roman
law have an inherent equity or equality of their
own.
There was therefore no separation between Law
and Right as in England, and the analysis which history
had made possible for Austin was impossible to the
great Civilians.1L Austin postulates ﬁrst a sovereign
1 Since writing the above I have discovered that opinions on the
subject of the Roman Law are held by German jurists which are cer—
tainly incompatible with the view I have been maintaining. Thus
Ihering, in his Struggle for Law, writes : “ It is a foreign Law, written
in a foreign language, introduced by the learned who alone can under-
stand it perfectly, and exposed from the ﬁrst to the different and
changing inﬂuence of two entirely opposite interests, frequently in
conﬂict with each other 5 the inﬂuence, I mean, of science, purely and
simply historical, and that of the practical application and development
of the Law. It is therefore condemned to a permanent dependence
upon, or to a permanent wardship of, the theory ; and hence it is that
particularism prevails in legislation and in the administration of Justice
74 THE NATURE OF POSITIVE LAW. [IV
armed with illimitable power, and then enquires from
him what the law shall be; the German jurists postu-
late some means of discovering law, and then demand
a power which shall enforce it. Now the greatest
authority on this matter, who has especially examined
it with reference to the legal systems prevalent in
India and ancient Ireland, and has found it to be inap-
plicable to them, nevertheless states that it is the goal
to which all legal ideas tend. He says that “though it
be improper to employ these terms sovereign, subject,
command, obligation, Tight, sanction, of law in certain
stages of human thought, they nevertheless correspond
to a stage to which law is steadily tending, and which
it is sure ultimately to reach.”1 He further observes,
and the views I have presented above as to English
law are partly coincident with the same idea, that
“ the capital fact in the mechanism of modern states
over the weak and limited efforts made to reach centralisation. Can it
be a matter of surprise that a gaping abyss stood between such law
and the national feeling of legal right, that the people did not under-
stand the law nor the law the people. Institutions and principles
which in Rome were, considering the circumstances and the customs,
intelligible, became here, on account of the complete disappearance of
the conditions precedent, a real curse; and there never was in this
world a mode of administrating Justice with more power than this to
shake a people’s conﬁdence in the Law, and all belief in its existence.”
(Lalor’s translation, p. 1 13). This is certainly strong language, and is
almost worthy of an English writer ; we shall indeed see later on that
the author in many points approximates to the English School of J uris-
prudence. But while I do not mean to imply by the above remarks
that the fusion of Law and Justice has ever been complete, I cannot
help believing that it was more nearly attained when Roman Law
was imposed on Germany, than when Norman Law was imposed on
England, or English Law on Ireland.
1 Village Communities, p. 7 O.
IV] THE INFLUENCE or POPULAR IDEAS. 75
is the energy of legislatures,” and continues, “ until
the fact existed, I do not, as I have said, believe that
the system of Hobbes, Bentham, and Austin could
have been conceived; wherever it exhibits itself im-
perfectly, I think that the system is never properly
appreciated. The comparative neglect with which
German writers have treated it seems to me to be
explained by the comparative recency of legislative
activity in Germany.”1 It would seem, however, ad-
visable before thus accepting the analysis of Austin as
ﬁnal even for England, to consider more carefully what
is implied in the fact that it is not applicable to our
own race in primitive conditions and times at all, and
that it has not been accepted even by that portion of
our race which in modern times has been most eminent
in juridical science. It is possible that our English
idea of Law as a creature dependent on the sovereign
may be only transitory, and in earlier and other ideas
on the subject there may exist an ultimate germ of
truth which it might not be unproﬁtable to discover.
Even if it be impossible in practice to separate Law
from the sovereign power, yet it may be well to
remember that elsewhere it is esteemed to have an
inherent dignity of its own, and it is not impossible
that if the jurist and the legislator keep this in mind,
there may be a more uniform agreement effected
between Law and Justice.
When, then, Austin discovered that there was in
England no science of Jurisprudence, and set to work
to found one, the ﬁrst diﬂiculty that met him was this
1 Early Institutions, p. 398.
76 THE NATURE OF POSITIVE LAW. [1v
very one of the confusion attending the use of popu-
lar language, and, as he was bound to make himself
generally intelligible, he had no choice but to use the
words which represented the vague popular ideas, and
to do the best he could with them, snufﬁng them, as he
said, with apt distinctions ; and thus the very ground
from which he starts is the necessity of introducing
into the science an accurate use of language and so of
thought. “ It really is important,” he says “(though
I feel the audacity of the paradox), that men should
think distinctly and speak with a meaning.”1 He
grows eloquent upon the advantages that would accrue
to the moral sciences generally if this method were
adopted, and reiterates the old entreaty that they
would take a lesson from the accuracy of mathematics.
Speaking of the inﬂuence which a general desire for
truth in these sciences would have upon their prose-
cution, he urges that the writers should “ attend to the
suggestion of Hobbes and of Locke, and imitate the
method so successfully pursued by geometers. . . .
Though they would often fall short of geometrical
exactness and coherency, they might always approach
and would often attain to them. They would acquire
the art and the habit of deﬁning their leading terms,
of steadily adhering to the meanings announced by
the deﬁnitions, of carefully examining and distinctly
stating their premises, and of deducing the con-
sequences of their premises with logical rigour.”2
The plan which he thus commended he himself care-
fully followed, and his book presents probably the
1 Jurisprudence, i. 123. 2 Ibid. i. 140.
IV] THE INFLUENCE OF POPULAR IDEAS. 77
best specimen we have of the exact deﬁnition and
consistent use of terms in the exposition of a moral
science. It is to be regretted, therefore, that he was
inﬂuenced by only one form in which law presents
itself, and that by considering societies in only one
stage of development, he bound up his legal system
with theories on Government from which it should
properly be kept distinct. As I have already re-
marked, no considerable attempt was made to ques-
tion the system thus established until a competent
observer was brought face to face with facts which
militated against it. We now know from the writ-
ings of Sir Henry Maine that the analysis of Austin
was inapplicable to Indian village communities as
they existed till recently; and that these, moreover,
might be considered fairly civilised whatever may be
thought of the condition of the ancient Irish tribes,
to which the analysis is similarly inapplicable. But
equally instructive is the course which legal develop-
ment took among the Romans. To this also the
writings of Sir Henry Maine have called attention,
and in its earliest stages it has been sketched in a
masterly manner by von Ihering of Vienna in his
Spirit of the Roman Law. The material thus placed
at our disposal, combined with what we know of the
subsequent development of Roman Law and of its
inﬂuence in Germany, makes it possible for us to take
a more extended view of the subject, and to decide
whether, if the ancient view of Law be fated to pass
away, there are not some germs of truth in it which
may support Jurisprudence under the weight of
78 THE NATURE OF POSITIVE LAW. [1v
physical force with which it is likely to be over-
whelmed.
The course which Austin takes is well known.
Brieﬂy put, it is as follows. He starts, or rather
as Sir Henry Maine has pointed out,l if he had
adopted a perfectly logical order he would have
started, with the idea of Sovereignty. This takes its
rise in political societies, and such a society is deﬁned
as follows : “ In order that a given society may form
a society political, habitual obedience must be ren-
dered by the generality or bulk of its members to
a determinate and common superior.”2 He further
guards this position by saying that, “in order that
an independent society may form a society political,
it must not fall short of a number which cannot be
ﬁxed with precision, but which may be considerable
or not extremely minute.” We thus commence with
the idea of a society of men, not too small in point
of numbers, living in subjection to a sovereign, and
affected by this subjection in all their relations. It is
easy, then, to say that a law is a command proceeding
from the sovereign and enforced upon the subjects by
means of a sanction, by the threat, that is, of some
evil which the sovereign, in virtue of his superior
power, intends to inﬂict in case of disobedience. But,
as in popular language, the word law is not used solely
of such commands, the epithet positive is added, in
order to distinguish such a law, which Austin, jealous
for his science, calls a law proper, from other laws,
which, he says, improperly bear the name. These laws,
1 Early Institutions. 2 Jurisprudence, i. 229.
IV] THE INFLUENCE OF POPULAR IDEAS. 79
improperly so called, are laws of God, moral laws, and
natural laws. A positive law is said to impose a
duty upon the persons to whom it is addressed as
a command, and it may confer a right upon some
other person or persons in whose favour it is issued.
From the initial idea of Sovereignty we thus get the
derived ideas of Positive Law, Sanction, Duty, and
Right, and we are told that “ The science of J uris-
prudence (or, simply and brieﬂy, Jurisprudence) is
concerned with positive laws or with laws strictly
so called, as considered without regard to their good-
ness or badness.”1 Now the whole of this position.
has been exhaustively reviewed by Sir Henry Maine
in the last two chapters of Early Institutions. He
there compares Austin’s method with that of the
Economists, who, for the sake of simplifying their
science, discard the effect of all the motives which
regulate human conduct except one—the desire to
make as much proﬁt as possible out of other people.
He points out that the Austinian view is the result of
abstraction. “ It is arrived at by throwing aside all
the characteristics and attributes of Government and
Society except one, and by connecting all forms of
political superiority together through their common
possession of force.”2 Hence, as in arriving at the
abstract ideas of the science, so much has been thrown
aside, it is or ought to be impossible to apply the
principles of the science in actual life until corrections
have been made. But apart from the indignity
which we may feel to be put upon Jurisprudence as a
1 Jurisprudence, i. 176. 2 Early Institutions, p. 359.
80 THE NATURE OF POSITIVE LAW. [Iv
science, by resting its foundations upon a temporary
and unworthy basis, there is very grave practical
danger to be apprehended from this course of pro-
ceeding. It is not suﬁicient to warn the student, as
Sir Henry Maine does, that the system which is before
him is founded on a mere abstraction and must not
be put into actual practice ; for it is not the ‘student
from whom the danger will here arise. The more
nearly the interests of a science approach to actual
life, the more danger there is that its abstract prin-
ciples may be laid hold of by people who are not
students, and carried out into practice without the
necessary corrections. The engineer does not trouble
himself about the principles of pure mathematics ; he
waits till these have been turned into a practical
form and then uses them for his own purpose. But
the principles of Economics and of Jurisprudence are
not thus abandoned to the mere student. The actual
workers in life—the popular writers and the popular
legislators—get hold of them and proceed to apply
them for their own purposes, regardless of the correc-
tions which a dispassionate student ‘of these sciences
would make. The result is, that when ordinary people
realise the principles which are thus at work in their
midst they become disgusted, and the science, though
it may be itself by no means to blame, comes in for
a large share of prejudice. This has certainly been
the case with Economics, and at the present time I
believe its adherents are unwilling that it should
stand any longer upon its old abstract principle,
which left out of sight so much of human nature;
IV] THE INFLUENCE OF POPULAR IDEAS. 81
they prefer rather that it should be corrected, to some
extent at least, before it is allowed to go out to the
world. A similar fate might perhaps have befallen
Jurisprudence had the science ever excited the in-
terest that has been aroused by Economics ; but the
hopeless position‘ of ignorance into which the lay
portion of the English people has been driven with
regard to legal matters, has made such general in-
terest impossible, and probably few who are well
acquainted with the work of Smith, Ricardo, and
Mill, have ever heard of Austin. It remains,v how—
ever, none the less true, that here also it will be
fatal for the legislator to dream that he is really
armed with the powers which Austin confers upon
him, and if Jurisprudence is actually. to be conﬁned
to the science of positive law as above laid down,
a day may come when the general disgust that must
be aroused at its results will only be the more intense
that‘ it is long delayed.
It is clear, from these remarks, that instead of
sending forth to theworld the Austinian conception
of Law as the foundation of our science, and leaving
it to be corrected in practice as best it may, it might
be advisable ‘to put it in a position in which the in?
herent value of Law will be more apparent. It may
indeed be impossible ever to separate it from that
physical force which supplies its sanction, but this
is no reason for making Law in its purest form
dependent on that force. The inﬂuence of funda-
mental ideas' is well known, ’ and if we can once
establish the conception of Law as the outcome of a
G
82 THE NATURE or POSITIVE LAW. [w
regular science of legal relations, we mayhave done
something to advance the day when the State power
shall be recognised to be the servant of Jurisprudence
and not its master. -
The task then which lies before usis to discover
upon what primitive elements the ideas of Law and
Right ultimately rest. We have seen reason to sup-
pose that the analysis which ascribes them to the
commands of a sovereign supported by unlimited
power is true only for men in a certain stage of de-
velopment, and perhaps, even for them, only appar-
ently true. For men in other stages of development
it is not even apparently true, and yet they are con-
scious of a sense of security and comfort arising from
the fact that the relations existing between them
are governed not by chance or brute force, but in
accordance with settled rules. It is possible then
that as our ideas of Law and Right are not held by
other peoples, so we may be able to resolve them
into ideas more general still, into ideas which shall
be, so far as men are governed by Law at all, of uni-.
versal application. But as the ideas which we possess
spring naturally from the facts that we see around us,
it is hardly possible for them ‘tofundergo any change
until we can compare them with ideas springing from
a different set of facts. However great may seem to
be the power of imagination in the human mind, yet
it is really very limited, and consists only in the re-
combination of familiar facts. Imagination, therefore,
will not lead us outside our own limited range of
ideas; we must have other sets'of fact placed before
Iv] THE INFLUENCE OF POPULAR ‘IDEAS. 83
us before wecan make any progress. To help us to
realise these when once presented to us, imagination
of course must be called in, and thus only can we
make, clear to‘ our minds those pictures of far-off times
and places with which we have to deal. It is clear,
then, that if our ideas of Law are to be subjected to
a further analysis, it can only be by comparing them
with the ideas of ' peoples who live or have lived
under other systems of law. We must try to abandon
our own way of looking at juridical matters, however
natural it may appear and however perfect we may
think it, and try ,to adoptthat of other peoples and
other times ; nor must we be surprised if we ﬁnd that
a fair amount of security and prosperity may pervade
the relations \of man to man, though there be no Sove-
reign who; makes laws and no State power which
enforces them. _We_ have to consider Law as it existed
among peoples to whom our modern political notions
.Were unknown; but it is exactly with these modern
political notions that our ideas of Law have become so
fused that it. is impossible for us to separate them.
The difference that hence arises between our way of
looking at the subject and that of totally diﬁferent
peoples is immeasurable. But while I do not, of
course, suggest that the result of our analysis ought
to take us back to primitive times, yet it may not be
improper to enquire whether the idea of a Sovereign
and of Force are elements of the ﬁrst order in the idea
of Law, for, if they are not, we shall probably dis-
cover the fact by tracking the course of Law from its
earliest development. Should we arrive at such ulti-
84: THE NATURE OF POSITIVE LAW. [IV
mate‘ ideas of Law as we .are now in search of, we
may still have to combine them for practical ‘pur-
poses with the political ideas above mentioned. A
most important and salutary- inﬂuence, however, may
be exerted upon this combination and its results, by‘
remembering that it is at best a combination of ex-
pediency, not of necessity; and though it must at
present continue, yet Law has an independent sphere
of its own from which it sprang, and to which, per—
haps, it tends. In accordance with the above plan,
I shall give a brief sketch of the gradual develop—
ment of Law, and for this purpose it will be neces-
sary for us to have some clear ideas on the origin of
society. I have already stated the sources to which
I shall chieﬂy be indebted. To many, indeed, the
following chapters may seem unnecessary; they are,
however, introduced in order to give something of
real existence to our conceptions of early law, in order
that these may serve as a basis for our ultimate con-
clusions. In such matters everything depends upon
the clearness of the ideas with which we start.
Vl . . PRIMITIVE SOCIETY. ' 85
CHAPTER V.
PRIMITIVE SOCIETY.
THE publication of Ancient Law practically revolu-
tionised the ideas of English readers upon the primi-
tive condition of society. All the early attempts to
reason about the primitive state of mankind were
vitiated by the error that afflicts every science at its
commencement. It determines at once, by a process
of guessing, the ideas or principles which it shall adopt
as its basis, and then proceeds to reason from these
deductively. But no science can claim the privilege
of deduction until it has passed through a long and
toilsome course of inductive discovery. Some sciences
there are which have not yet accomplished this, others
which have hardly begun it. The science which at-
tempts to deal with the relations of men, and especially
their primitive relations, can only recently be said to
have escaped’ from the above error. The course which
it originally adopted has been well described by Sir
Henry Maine in Ancient Law. It consisted, as he
there tellsus, in “ ﬁrst supposing mankind to be di-
vested of a great part of the circumstances by which
they are now surrounded,- and by then assuming that,
in the condition thus imagined, they would preserve
86‘ THE NATURE} OF P'osITIvE LAW. [v
the same sentiments and prejudices by which they
are now actuated, although, in fact, these sentiments
may have been created and engendered by those very
circumstances of which, by the hypothesis, they are to
be stripped.”1 The keynote to the revolution which
has thus taken place in considering the early relations
of mankind, is the discovery that we must not conceive
of primitive man as existing in the separate and iso-
lated condition of modern times, in which sentiment
has but a small share in regulating his conduct with
regard to his fellows, aregulation which is now largely
effected by contract ; we must, on the other hand, exalt
and enlarge the feelings which spring from family
and political life, and conceive of men as regulating
their actions chieﬂy with regard to the position they
hold in the family or in the community. In other
words as “ the movement of progressive societies has
hitherto been a movement from Status to Contract,”2
so, in returning to primitive times, we must follow the
reverse order; we must cease to think of the relations
between man and man as arising by agreement, and
look at them as taking their origin in the natural
position of the individual‘ as a member of a family and
of a community. ' . o . ' ' '
Thus, while early speculators regarded primitive
men as individuals in a state of war until they found
it necessary to regulate their relations by ‘contract,
recent investigations lead us to regard the primitive
man as a member of an organisation which, however
hostile may have been its relations to, other similar
, -1_ r. 254. ,J a a, ' 2' Ancient Law, p.110, '
vl . PRIMITIVE SOCIETY. ‘ 87
organisations, was yet internally in a condition of
settled peace and order. As natural‘ sentiment, where-
ever it exists, even now binds men together far more
strongly than contracts enforced by law can do, so we
may easily conceive that in the primitive family,mean'-
ing by this word a somewhat extensive assemblage of
individuals, a peaceful and harmonious condition of
things existed which was certainly not contemplated
by the writers on the social compact.
Taking advantage, then, of the information which
has thus been given to us, I shall present'a short
sketch of the actual course which the development
of society has taken, in order to point out how the
different stages of this development correspond to
radically different conceptions as to the nature of Law,
and in order to present, in as clear a shape as possible,
the actual forms which legal relations have taken.
In doing this I shall suppress details as far ‘as possible,
and thus the results may appear somewhat idealised
and the distinctions too sharply drawn. It must be
remembered, however, that we are only seeking for
foundations on which general conceptions must rest,
and that these have almost always to be rectiﬁed
when reintroduced into actual life.
There has been a very prevalent opinion that
mankind passed through a roving and pastoral stage
before they took to agriculture and settled down upon
deﬁnite tracts of land. But although we wish to get
the earliest view possible of those rules which corre~
spond. ‘to our modern law, it‘ would be superﬂuous for
us to go back to this stage in human development.
88 THE NATURE or POSITIVE LAW. [v
Professor Holland does, indeed, tell us that “ the
shepherd who guides his ﬂock, or, on a larger scale,
the head of a family who regulates its encampments
and employments, seems to have been the earliest
‘ lawgiver,’ and his directions, as orders given by one
who has power to enforce their observance, are the
earliest ‘ laws’:” 1 but it seems to me that we cannot
consider mere detached commands of this kind as in
any way corresponding to the true notion of law, and
the comparison perhaps shows too rigid an adherence
to the Austinian Sovereign and Sanction. It is true
that all assemblages of men must submit to certain
rules ; yet these, among a society in the pastoral state,
pertain rather to general administration, like those
which govern an army, than to the social relations
between individuals with which legal rules are more
properly concerned. These rules, indeed, chieﬂy refer
to property and the relative position of individuals;
a relative position which, in later ages, is determined
by contract, but, in earlier times, by conditions imposed
by birth upon the individual, and denoted by the term
status. Hence legal rules do not become prominent
until the possessions of the community or of individuals
attain some importance, and until the organisation of
society requires the imposition of different duties upon
different individuals ; until, that is, we have a re-
gulated system for the use of property together with
distinctions of caste. This, however, does not appar-
ently happen till after the pastoral stage has been
passed, and it is to subsequent developments that we
1 Jurisprudence, p. 13. - . ' I
Vl PRIMITIYE SOCIETY. - ' " 89
must look for the social facts which. have favoured the
growth of legal rules and of regulated sovereignty. ‘
It may be as well to state at once that I regard
it to be of the essence of Law that it should govern
all parties in the State, and hence it is more proper to
look for its origin in Custom than in Command. It is
true that one German writer of note has come so near
to the English school as to regard Law as a Command,
but then he goes beyond it in requiring that this
Command should have a bilateral force, and he main-
tains that we have not arrived at the developed idea
of Law till we have seen the State power learning to
control itself and submit to regulation just like a
subject.1 Of course I do not deny that Law, con-
sidered merely as a command, has had the greatest
inﬂuence on legal progress.
It will be useful in the ﬁrst place to give a brief
summary of the course of events in primitive society
which Sir Henry Maine has been gradually making
clear to us. In the beginning of things we ﬁnd men
united by ties of actual or assumed consanguinity;
and in the latter case the assumption is not merely
sentimental, like our modern saying that all men are
brothers, but it is to all intents and purposes regarded
as a fact.2 At the head of the group thus united we
ﬁnd the Chief, who derives a direct descent, if possible,
from the common ancestor, but~ who must qualify by
merit as well as by birth. The government of the
tribe is in the hands of this Chief, but he is more like
1 Ihering, Der Zweck im Recht, p. 344.
2 Early Institutions, p. 65.
90 THE NATURE OF POSITIVE LAW. [v
a father than a sovereign, and the clan is ruled by his
direct commands rather than by ﬁxed laws; these,
indeed, are hardly required at this point, for there is
no private property, and the relations between man
and man are of the simplest description. Already, how-
ever, we see the Chief assisted by a Council, either of all
the heads of families or of a chosen few to represent
them. The great step towards a change in social
relations is taken when the clan abandons its pastoral
life and settles down upon the land. I have spoken
of a clan, but it is possible that the assemblage may
have ‘grown into a larger group still, and, consisting
of a number of clans, may more properly be called
a tribe. In order to give distinctness to our ideas,
we may regard the clan as a group of agnatic kins-
men, and the tribe as a group of cognate kinsmen;
in other ‘words, members of the same clan are all
related through their paternal male ancestors, while
members of the same tribe may be related through
female ancestors.
When, then, this settlement upon the land has
taken place, a new set of social forces comes into play,
and these gradually produce the whole machinery of
modern Law. The ﬁrst ‘ point to be noticed is “ that
when a tribal community settles down ﬁnally upon a
deﬁnite space of land, the land begins to be the basis
of society in place ‘of kinship.” 1' We shall shortly
see how this settlement: upon ' the land produces ﬁrst
the Village Community, ‘with its system of ‘common
tillage and rules of customary ; law,v and how from
1 Early Institutions, ‘p. 72'.
v1 I = PRIMITIVE sooIETY. 91
this we pass to the permanent division of land, the
growth of private rights of all kinds, and the rules
which are devised to regulate them.v It is indeed
this division of the land, as Well as the mode in
which it is held, which so powerfully inﬂuences the
subsequent growth of society. Thus, so long as the
fact of kinship is ‘remembered as the bond of union,
each clansman holds his plot of land by virtue of
his position as a member of the clan. In such a
case we have ownership by virtue of birth, and it
is this fact in the social organisation of the Rajput
States of India, that Sir Alfred _Lyall has brought
out so clearly. After this we have two directions of
development, from cne of which names the Roman
and from the other the F eudalownership. In the
former case, the settlement upon the land levels all
distinctions ; the citizens live in equality amongst each
other, and each possesses his plot of land in absolute
ownership: such is the Roman domininrn. In the
latter case, and probably after a brief period of Roman,
or, as it is usually called, alloolial ownership, society
begins to arrange itself once more in ascending grades,
but the tie which binds these together is not one of
kinship; it now depends upon the fact that each
lower grade holds its land from the one above. We
have here, indeed, lost absolute ownership, save that
it is vested in the‘ Chief who forms the summit of
these ascending ranks, and we have arrived at the
Feudal state of- -society._ The next step is to abolish
all the intermediate links, leaving the people in a
state‘ of equal subjection. to the. :Sovereign, who is
92 THE NATURE or POSITIVE LAw. [v
armed with- all the powers of government." In this
case, we return to the idea of absolute ownership,
qualiﬁed, however, by the fact that the Sovereign can
now at any time interfere with it. There are few
historical questions more interesting and important
than that of the fcudalisation of society; for our
immediate purposes, however, it will be sufficient to
consider merely the gradual rise of private owner-
ship in land, and the destiny of the power of the
Chief after the settlement on the land has taken
place. To these points, then, we will now address
ourselves. _ '
We have to consider ﬁrst the change from a pas-
toral or nomad to an agricultural or settled mode of
life, and this, of course, like all other changes, is one
that requires time for its accomplishment, and is by
no means effected at one step. Already in the pas-
toral mode of life there is a certain amount of culti-
vation. But as it is only necessity which forces this
upon man, so at ﬁrst it is ‘done in the shortest and
easiest way. The Tartars, for instance, during their
temporary occupation of a tract of land, sow and reap
a harvest of buckwheat. This is all over in two or
three months, and then they are at liberty to resume
their wanderings. In this state of things it is hardly
necessary for any division of the ground to take place
at all. We approach, however, the stage we are con-
sidering when, the tribe abandons this perpetual mov-
ing and settles down in a particular spot.1L Crops
1 For an account of this process, as observed among the Bashkirs,
see Wallace’s Russia, ii. 47.. .
v] PRIMITIVE SOCIETY. ~ 93
that‘ require more care and 'a. longer time are now
taken in hand, and it- becomes advisable to entrust
special portions of ground to particular small groups
of individuals. The absolute community of interests
which has hitherto existed‘ in the clan is thus some-
what broken up. The ﬁrst step is‘ made towards
individualisation. As the pressure of circumstances,
the necessities of a roving life, have hitherto extended
absolute unity of ' interests beyond the limits which
the ties of blood alone would set, so now, when these
necessities are removed, the natural limits are revived ;
and as soon as a division of some kind in the clan is
required, a return is made to the original unit from
which men started,‘ that is, to the family in some one
of ‘its forms. As soon, then, as a clan settles down
to an agricultural life, an element of disunion appears
in its midst, and this is shown by the division which
takes place in the land and the assignment of parti-
cular portions, temporarily at least, to the different
families. The original reason why this assignment
is only temporary is very simple. Such a clan ﬁnds
itself at ﬁrst in the midst of a wide territory and
there is no need to attempt to cultivate the whole of
it. Hence, when the year’s harvest has been gathered
in, it is more proﬁtable to move tofresh land and get
the next year’s harvest from virgin soil.
Caesar remarks that the Germans applied themselves very
little to agriculture—agricultum minime student—and that they
never cultivated the same land two years together. , The magis-
trates who annually allot to the several families the share which
comes to them, make them pass from one part of the territory
to another. Tacitus tells us’ the same‘ thing :. Aria per ann-os
94 THE NATURE OF POSITIVE LAW. [v
mutant. et superest ager, they cultivate fresh lands each year, and
there always remains a portion undisposed of.” 1
- The same reason, therefore, which dictated a division
of the ‘land at the beginning makes it necessary
again each year. In certain villages in the Ardennes,
in Belgium, which‘ have large tracts of common land,
this practice is still in force, and the same land is only
cultivated once in every eighteen or twenty years.‘2
In such cases, then, a redivision of the land each year
is perfectly natural; if, moreover, so long an interval
elapses before the same ground is occupied again, all
memory of the former occupation will pass away, and
the desire of separate ownership will not arise. A
very important factor, then, in deciding how long this
state of things will last, is the extent of land which
happens to be at the disposal of the community.
In course of time the increase of population puts
an end to this wealth of unoccupied land. The same
land has to be cultivated or left fallow in regular suc-
cession year after year. The practice of redivision, to
which the people have so long been accustomed, now
acquires a further value. It removes any inequalities
that may have arisen in the occupation of land, and
gives an opportunity for the assignment of a portion
to new families. Such inequalities‘ will always arise
apart from any private transfer of land where the
division is based upon the number of adult males in
the family. If, however, there is plenty of unoccupied
territory, this may be used for the purpose without
resorting to a totally fresh division. Thus, where a
\
1 de Laveleye, Primitive Property, p. 102. _.2 I bid.
Vl _ PRIMITIVE' SOCIETY. 95
Russian mir or village community is settled upon ‘;‘ the
lands of the Crown, where there is no want of space,
they mir generally holds in reserve a portion of the
land, that it may always have some for the new house-
holds that are formed; meanwhile, these unallotted
parcels are let for rent. By this means the necessity
for a new division is rendered less frequent.”1 In
this case, therefore, the two reasons which originally
dictated the continual redivision of the land disappear.
There is no longer an annual change in the land under
cultivation, and it is not necessary to make a fresh
division to provide lands for every family. There is,
therefore, no obstacle to the gradual rise of the notion
of separate property in land, and to the entire disuse
of the practice of redivision. Though, however, there
is no direct obstacle, there are many reasons which
delay such a result. Hence this form of the enjoyment
of property has everywhere had a long history, and in
many places continues down to the present day. It
is the object of M. de Laveleye’s Primitive Property
to establish the universal appearance at some time or
other in a people’s history of such a condition of
things. He has sketched it as it exists at the present
day in Russia, in Java, in Switzerland, in Algeria,
and elsewhere, and as it existed in former days in
Germany; while Sir Henry Maine has called atten-
tion to its occurrence till recently through much of
India, and to the form which it took. among the Celtic
tribes of Ireland. I need only remark here that this
method of agriculture gave rise to a vast number of
1 Primitive Property, p. 1 3.
96 THE NATURE or POSITIVE LAW. [v
rules‘ of cultivation and rules‘ for common use, in
which we may see the I origin of customary law.1
Where a continualredivision of the ﬁelds takes place,
it is absolutely essential» that all should pursue the
same plan of tillage, and the minuteness with which
the division is carried out makes it necessary for each
man to have certain rights over ‘the lands of others,
privileges which, indeed, present themselves not so
much asspecial rights, but rather as essential to any
enjoyment of the land at all. ‘Sir Henry ‘Maine
reasons in the reverse order to this when from ‘the pro-
minence of servitudes in Roman Law he argues for the
original common enjoyment of landed property, and
says that the abundant Roman servitudes appear to him
“ to point back to the same modiﬁed common enjoy-
ment of land which characterised other Aryan races.” 2
This, however, is not the only source of legal rules.
Sometimes extensive works have to be undertaken for
(the beneﬁt of the common property. Special usages
in such cases will arise with regard to the labour
to be expended and the right to share in the result.
This happens, for instance, ‘cases where irrigation
has to be carried out ‘on a large scale. Examplesof
this, takenfrom the dominion of the Arabs in Spain,
are given by M. de Laveleye'; and at the present day
the distribution of water provided by public works in
India is entrusted to the proper village authority.3
Other matters too may require regulation, such as the
number of cattle to be placed by members of the com-
1' Village Communities, p. 86. 2 Early Law and Custom, p. 340.
3 Primitive Property,‘ p. 129'; Village Communities, p. 1 09.
Vl PRIMITIV E SOCIETY. 97
munity on the common pasture land, and the amount
of wood'to be cut in the common forests. All these
are sources of rules and practices which become, as
time goes on, customary law. Among a people, then,
who are little given to change, and who are of a sub-
missive disposition, the very existence of this law
binds them in fetters which can hardly be broken, un-
less some inﬂuence is brought to bear upon them from
without. We may put this down as the chief cause
which secures the continuance of the Village Com-
munity, as indeed it secures the continuance of most
human institutions. As other reasons which affect
the matter, we may name the part which agriculture
plays in the life of the people, and the amount of
individual labour which must be expended on the
ground to make it yield a sufficient return ; for where
agriculture is important and demands much toil, there
will, as we know, arise an unwillingness to continue
it except on the condition of a continuous holding of
the same land. A consideration of these points will
show how the course of different nations has been
determined. The Hindoo is indolent and submissive;
he is accustomed all his life to consider and follow'the
customs which his ancestors have followed for genera-
tions before him. No great exertion, moreover, is
required to produce the little that suffices for his
support: the chief labour consists in procuring water
for his ﬁelds, and as this is done by the combined
labour of the community, it has no such separating
effect as diligent cultivation of the soil. It is thus
natural that the Village Community should have
H
98 THE NATURE OF POSITIVE LAW. [v
lasted so long in India, and that it is only now yield-
ing to the solvent inﬂuence of British rule. Among
the, early Romans, on the contrary, very opposite in-~
ﬂuences were at work. They were doubtless in—
ﬂuenced largely by custom, but only to a slight
extent compared to such a people as the Hindoos.
\Vith them it was necessary that custom should
correspond to some extent with present needs. They
had, indeed, great reverence for the past, and in
some cases it was carried to considerable lengths,
as in the observance of legal forms and ceremonies.
But to this all peoples are liable. What we must
chieﬂy notice is, that the Romans were never de-
terred by their reverence for antiquity from ﬁnding
some means of making it compatible with actual
needs. Moreover, agriculture formed a large part of
their occupation, and demanded probably some con-
siderable labour. We can thus understand how the
above-mentioned reasons favoured the institution of
private property in land among them, and how this
was extended, if not in the form of property, yet
in the form of continuous possession, to the ager
publicus or common domain. In Russia we cannot
trace the causes quite so plainly. According to the
reasons laid down above, the tendencies should be
pretty evenly balanced. The Russian peasant is sub-
missive and inclined to adhere to custom; at the
same time agriculture requires much toil and ﬁlls a
large part of his life. It is not surprising then to ﬁnd
that another cause has intervened and settled the
matter, and that the present striking position of the
Vl PRIMITIVE SOCIETY. 99
Village Community is due to a peculiarity of taxation.
Instead of the old land-tax a poll-tax has been intro-
duced, and for this the Government holds the mir
responsible. It is for the general interest, therefore,
that every one should have a share of land, that he
may be able to pay his share of the tax. Sir Henry
Maine also notices that the same reason has favoured
the preservation of the South Sclavonian House Com-
munities, responsible as they are for taxation to the
Mahommedan government?L But as British inﬂuence
is affecting the village communities of India, so
Western inﬂuence is affecting those of Russia. The in-
ﬂuence, however, approaches in each case from a dif-
ferent direction. In India the inﬂuence strikes from
I above at the organisation of the community, by ﬁxing
the separate rights and duties of the members, and
by undermining the old feeling of common interest.
In Russia, on the other hand, the constitution of the
rnir is already ﬁxed by government so as to bind it
together. The inﬂuence of Western ideas is there
felt in the family, where it tends to a dissolution of
this body and a destruction of the paternal power.
If we consider lastly the case of Switzerland we shall
see how our causes have been at work on different
sides. It might appear, at ﬁrst sight, as though the
independence of character which is a mark of the
Swiss would have produced a separation of property
there as it did at Rome, but we must notice the
‘ different state of the common property. In Switzer-
land the arable land does not exceed in importance
1 Early Law and Custom, p. 237.
100 THE NATURE OF POSITIVE LAW. [v
the other parts. The common property is expressly
said to consist of forest, meadow, and cultivated land.
The ﬁrst two items in this case largely affect the
people, and for the enjoyment of these no division is
necessary. The old system of common enjoyment,
therefore, did not become antique and useless, and the
Swiss, who doubtless could have easily done so had
they chosen, were under no inducement to give it up.
They were not affected, moreover, by the F eudalism
which played so large a part in introducing private
property among the other Teutonic nations ; for it has
been pointed out,1 that the system of private property
in land which has grown up in most Western countries
is due, not only to the separation of property produced
‘by the dissolution of the Village Community, but also
to the gradual spread of the idea of property which
originated in the power of the lord, a power obtained
ﬁrst over the waste land and then over the manor.
In these remarks I have assumed that a clan has
settled down upon the land, and has exchanged a
pastoral for an agricultural life ; I have introduced
the subject in order to show that the want of the
institution of private property, which characterised
the former state, at ﬁrst characterises the latter also ;
and I have traced very brieﬂy the progress from the
regular redistribution of the land to a ﬁnal condition
of absolute separation of property. It is further. of
some importance to realise the different forms which
society takes when the settlement upon the land has
thus been made, and it may assist us in some of our
1 Early Institutions, p. 120.
v] PRIMITIVE SOCIETY. 101
subsequent remarks, if we have before us a brief
outline of recent investigations on the subject.
The two forms which have been made familiar to
us by the writings of Sir Henry Maine are those of
the House Community and the Village Community, "
and between each of these and the Family there is a
continual process of transformation going on. That
this process is uniform cannot be affirmed, but we
may say that the unit from which society springs is
the Patriarchal Family ;1 that when the members of
this keep together after the death of the founder,
having a common dwelling, a common table, and
common property, we have the Joint Family of the
Hindoos and the House Community of the South
Sclavonians; and that when these forms dissolve
again into families, occupying the same tract of
country, we have the Village Community.
In the true Village Community the common dwelling and the
common table, which belong alike to the Joint Family and to the
House Community, are no longer to be found. The village itself
is an association of houses, contained indeed within narrow limits,
but composed of separate dwellings, each jealously guarded from
the intrusion of a neighbour. The village lands are no longer
the collective property of the community ; the arable lands have
been divided between the various households ; the pasture lands
have been partially divided: only the waste remains in common.2
But though this series of changes from Family to
Joint Family, and from the latter to Village Com-
munity, is useful to assist our mental conception, yet
we cannot say that such a process of evolution always
takes place,’ and indeed it is not at all settled which
1 Early Institutions, p. 116. 2 Ibt'd. p. 81.
102 THE NATURE OF POSITIVE LAW. IV
of the two last is really the primitive form. So long,
indeed, as the pastoral state is continued it is of course
impossible to distinguish between the two; they may
be said, however, to correspond to difference of sizes
in the clan, and perhaps this difference of size may
determine which form is adopted when the settlement
takes place. It is to be noticed, however, that which-
ever form is ﬁrst established the other is continually
tending to develop itself. Thus the House Com-
munity as it enlarges begins to split up into separate
parts and becomes a Village Community : and the
families in the Village Community tend in many
cases to enlarge and become Joint Families. We may
thus say that the House Community is the original
form, for although it may not always be produced
upon the settlement on the land, yet it corresponds to
an earlier stage in the growth of the clan, and when
‘it is really produced it tends afterwards to become a
Village Community. When, on the other hand, this
form is actually produced ﬁrst, it is merely because the
clan in its roving state has already developed beyond
the limits suitable to a House Community. I have said
that in this case the House Community is produced
inside the Village Community in the shape of the
Joint Family; and we are told that the House Com-
munity corresponds in most particulars to the Joint
Family. There is, however, this important distinction,
that whereas in each the tie of blood is very prominent,
yet in the latter it constitutes the only bond of union,
while the House. Community rests also upon common
occupation of the land. Thusthe Joint amilies are
'v] PRIMITIVE SOCIETY. .103
only accidentally connected with the land however extensive
the landed property may be. What holds them together is not
land but consanguinity, and there is no reason why they should
not occupy themselves. as indeed they frequently do, with trade
or the practice of a handicraft.1
In the House Community, on the other hand, the occu-
pation of land is an important element, though even
here there is now a tendency to rely upon other sources
for securing a livelihood.2
It will in general, then, be safe to ‘use the term
House Community for an extended family that settles
upon the land before the formation of a Village Com-
munity ; and the term Joint Family, for such a group
when it lives together as a portion of the Village Com-
munity. We may, then, represent to ourselves the
Patriarchal Family as the unit from which society
springs ;3 hence arises the House Community; this,
on its further extension, separates into different allied
families, forming a Village Community; within this
Community again we have the Family, expanding into
the Joint Family, and between these two a continual
process of transmutation is going on. It must be re-
membered that this is an ideal picture ; it represents
rather a formula which we can apply to different states
of facts, than a series of changes which is always to
be found. It is indeed difﬁcult to separate in actual
cases between the House Community and the Village
Community, and to decide which is the oldest. I have
above suggested that the form really adopted may
depend upon the size of the clan when a settlement
1 Early Institutions, p. 79. 2 Early Law and Custom, p. 248.
3 Early Institutionap. 116. ' -
v104 THE NATURE OF POSITIVE LAW. [v
takes place; but in all the forms with which we are
acquainted it is impossible to go so far back in their
history, and this for the reason that they have been
established long before races of men occupied their
present abodes. Thus Sir Henry Maine has remarked
that social history begins long before tribal settlement,
and that the tribe brings with it its principles of union
from an older home.1 b
Hence it is only by an act of the imagination that
we can regard these types as successive in evolution.
\Ve have really to take them in the stage at which
they now happen to be, and consider the historic
circumstances which seem to have moulded their des-
tiny. It is thus possible to see how the Russian mir
has been kept alive for purposes of taxation, and how
the Montenegrin-s have preserved the House Com-
munity as the best safeguard against the Ottoman
Government. So far as the development of Law
indeed is affected, we are primarily concerned with
the Village Community, for here apparently we have
the origin of Customary Law. But of course the Joint
Family is of the greatest importance in tracing the
law of inheritance ; and in searching for the origin of
political power we must keep the Family, the House
Community, and the Village Community, in their
proper order. For these “ disclose to us Political
Power in embryo ; the Chief growing out of the
head of the household ; the State taking its ﬁrst
beginnings from the Family.”2
So far I have traced the change in the clan effected
1 Early Institutions, p. 71. 2 Early Law and Custom, p. 242.
Vl PRIMITIVE SOCIETY. 105
by its settlement upon the land. In the pastoral
state, indeed, there can hardly exist any law properly '
so called. In the agricultural state we ﬁrst ﬁnd a
condition of things in which the land is held in com-
mon and enjoyed by means of temporary divisions.
Here there is a considerable source of Customary Law
in the usages which regulate the enjoyment of the
common property, and ensure uniformity of cultiva-
tion. Where the land has been divided and is held
as private property, we have a new state of things.
The old customs still have much weight, but new ones
arise, and special regulations are made in order to ﬁx
the separate rights of individual owners. This, how-
ever, presents us with only one side of the picture.
We can understand now the state of society in which
Law arose and to some extent how it arose. But we
shall not be ready to continue our investigations until
we gain some idea of the kind of government under
which men originally lived. I have just referred to a
passage which suggests the very origin of the political
authority of one man over others. It is the develop-
ment and ultimate destiny of this authority that we
must now consider. This is a matter, indeed, which
Sir Henry Maine has made peculiarly his own, and
I shall therefore merely give such brief outlines
taken from his writings, as will put us in a position to
grasp with some clearness the political condition of
certain typical races. '
It is clear that the power of the Chief originally
springs directly out of that of the Paterfamilias and
is modelled upon it. Thus the functions of the
106 THE NATURE OF POSITIVE LAW. Iv
. ﬁ/_
Domatchin or House-Chief in a South Sclavonian
Community are described as follows :—
The administration of all affairs is in his hands; he allots
the daily tasks; he presides at the common meals and distri-
butes the food; he reprimands for faults and delinquencies ; he
is invariably addressed in language of the greatest respect ; all
rise on his entrance; no one covers his head or smokes in his
presence ; no amusement or ceremony commences till he appears
or announces that he will stay away.1
But though the authority of the Chief is at ﬁrst of
this kind, yet many circumstances combine to withdraw
functions such as the above from its sphere, and to
render it more like the authority of a military leader.
It has been already remarked, that all races with which
we are concerned have wandered away from their
original homes, and it is upon the occasion of such
wanderings that We may regard the power of the
Chief as largely developed ; the tribe requires not
only a leader in the wilderness but a general to lead
the attack on the promised land. It has been noticed,
too, that as the Joint Family dissolves and becomes
a Village Community, the patria jootestas springs up
againin each separate family.2 Hence the Chief loses
the immediate control over families, but gets in its
place a control over the heads of families. Moreover,
the authority of the Chief is probably never so abso-
lute but that he is expected to take counsel of other
men of inﬂuence and experience. In early times,
I when, upon the death of the actual father, the different
members . of ' the family remained together and chose
one of ‘ their number to act as paterfamilias, it was
1. Early Law and Custom, p. 246. {Early Institutions, p. 118.‘
Vl _ 7 PRIMITIVE SOCIETY. ' 107
probably understood that matters of importance should
receive the attention of all. Indeed, we know that
even in the Roman family, where the power of the
father was so absolute, it was not thought proper for
him to take any important step without getting the
advice of his relatives. Such is indeed actually the
case in the South Sclavonian House Community, where
the House-Chief is assisted by a Council of Elders.
We thus see that though the power of the chief is
_modelled upon that of the father, yet it tends to be-
come restricted in the above ways.1
We have now, indeed, all the usual elements of
political society. The unit is the Family under the
dominion of the paterfamilias : these latter are them-‘/
selves governed by the Chief; not despotically, however,
for the Chief in turn must submit to be inﬂuenced by
a Council,——'a Council of elders where the society is
peaceful, of warriors where it is warlike. The point
of interest for us lies, then, in the future relations of
the Chief and his Council. It is to be noticed, indeed,
that one great department of government, that of
legislation, is not at all, as yet, within the sphere
of the Chief. As soon as rules of law arise they are
ascribed to custom, and the Council is the most natural
authority for declaring what in any given case this
may be. To the same body it is possible for the
judicial power of the Chief to be transferred. The
great point, then, in determining his future position is
1 Interesting conﬁrmation of this with regard to a totally differ-
ent race will be found in a paper on Fiji by Sir A. ‘Gordon, in the
Contemporary Review for May 1883.. .
108 THE NATURE OF POSITIVE LAW. [v -
the necessity which may exist for a military leader.
Inﬂuences are thus at work from the earliest times
which conﬁne the Chief more and more to his
duties as leader, and the Council of elders probably
discover that this is his real oﬂice, while they them-
selves ought to adjust the general relations of the
community. We see, too, that when a settlement
on the land takes place, there is a great chance for
this tendency to take effect. There are now fewer
duties for the leader to perform, and more for the
Council of elders. The natural course then is for the
ofﬁce of leader to fall into abeyance, and for the affairs
of the community to be entrusted to a Council. The
original Chieftaincy as a political power was kept in
existence by the necessity for combined action under
a single head. But in the Village Community, which
is formed when the clan settles down upon the land,
though there may still be necessity for combined
action, yet it is no longer always necessary for this
to be entrusted to one individual. I have only,
however, been describing a tendency. Whether this
tendency will prevail will depend upon the other
tendencies that may be working to counteract it.
One of these is of general operation; the other is,
perhaps, peculiar to certain races. I have said that
the ofﬁce of Chief declines in importance when there
are no longer any military duties for him to fulﬁl.
This, of course, supposes that the clan can settle down
where it will be unmolested by external enemies. But
such a condition of things is seldom realised. Hence,
no sooner is the clan settled on the land and the
Vl PRIMITIVE SOCIETY. 109
power of the Chief thus imperilled, than an opposite
cause comes into play, and the Chief, who is no longer
wanted to conduct the wanderings of the tribe, is still
required to defend it against its foes.
I have perhaps said enough to account for the
different course which events took among the Hindoos
and the early Romans. We cannot, indeed, say that
each Hindoo village represents a clan which at one
time entered the country and settled upon the land,
though we have traces of the immigration of vast
numbers of such clans, and Sir Alfred Lyall has
described how they are always in process of forma-
tion. It is enough for our purpose to allude to
those fertile districts of India, where the military
spirit either died out or was concentrated at the
court of a distant emperor, who only sent his officers
round the country for purposes of taxation. Here
we still have a dynasty at the head of society,
and we may still have remnants of clear organisation
under a Chief in different districts. When, however,
we get down to the Village Community, the last trace
of necessity for this has, as a rule, vanished. Thus even
the Rajputs, when they have settled down in a fertile
country, lose their tribal organisation, and the power of
the Chief disappears.1 The normal governing authority ,_
is now the Village Council. This, indeed, is not of uni—
versal occurrence; its place is sometimes taken by a
Headman, elective or hereditary, and here, perhaps, we
have a relic of clan organisation. But if we consider
the stage in which this has passed away, we ﬁnd that
1 Sir A. Lyall, Asiatic Studies, p. 199.
1'10 THE NATURE or POSITIVE LAw. Iv
the Village Council is'always received as a representa-
tive body, rather than as a body possessing inherent
authority, and we have a modern democratical State
in miniature.1
If now we regard the condition of a nation com-
posed of a multitude of such communities, we arrive
at an interesting result as to the distribution of the
powers which we usually ascribe to the Sovereign. We
have indeed a central authority in the person of the Em-
peror, and to him, speaking generally, the management
of military affairs belongs. The different portions of
the nation are thus able to settle down in peace, and
hence we get the Village Community managed by the
Village Council. Just as under a modern government,
the individual can dispense with his castle ; so, though
of course the parallel is not perfect, under the old
Indian governments the village could dispense with its
Chief. But even here we can see how essential is the
distinction between them. I have above pointed out
that the duties of the Chief tend to become merely
administrative, and that his inﬂuence is excluded from
private life. In this germ we see how it was that the old
Indian governments were solely administrative, and
how legislation with regard to the internal affairs of the
community was never thought of.2 A Western govern-
ment such as that of England, on the other hand, has
been submitted to completely different influences. Here
there has been a tendency from the earliest times to
throw not only administrative, but also legislative,
authority into the hands of the central power, and
1 Village Communities, p. 122. 2 Early Institutions, Lect. xiii.
vI PRIMITIVE sooIETY. 1 111
thus we arrive at the essential point of the Austinian ;~
analysis.
If, again, we turn to the early condition of the
Romans, we must, indeed, trust largely to conjec-
ture; but though we have to establish our point of
view in this way at ﬁrst, we shall ﬁnd many results of
it which raise its original probability to a fair position
of certainty. We have seen that at the moment of
settling down on the land the position of the Chief
is at once imperilled. Amongst the Hindoos this
danger is realised because the Village Community has
no need of defensive or offensive organisation. With
the Latin tribes it was far otherwise. In what form
they originally came into Italy, whether as detached
bodies, or in one vast army, we can hardly say; but
it is certain that they never settled down into that
inter-tribal peace which seems to have characterised
the Hindoos. This we must ascribe partly to their
warlike character, partly to the scanty space at the
command of each tribe. For the truth of the ﬁrst
assertion, we need only point to the continual wars in
which the Latin tribes were engaged; for the truth
of the second, to the exceedingly narrow boundaries
of the original Rome.
In the landward direction they were on an average just
about ﬁve miles distant from the capital of the canton, and it
was only toward the coast that they extended as far as the
mouth of the Tiber (Ostia), at a distance of somewhat more than
fourteen miles from Rome.1
We thus see that there was no time when the
1 Mommsen, i. 104.
112 THE NATURE OF POSITIVE LAW. [v
necessity for a leader could die away, and hence we
meet with a King at Rome from the earliest date.
As to the position and authority of such Kings there
is much controversy. According to the view I am
here adopting, he was nothing more than a military
leader, with perhaps some slight additional weight in
the tribal councils. This position,however, was one
which successive Kings used for their own aggrandise-
ment in various ways, till the patience of the Roman
spirit was exhausted. The ofﬁce itself was then
abolished, and the progress of the Roman common-
wealth, which had been only disturbed, not materially
affected, by this episode of the Kings, went on. To
this matter I shall have occasion to return, but for
our present purpose enough has been said. The tend-
ency, in obedience to which the ofﬁce of Chief would
have died out, was arrested, then, in Latium by the
continual tribal wars. The direction subsequently
taken varied in different cases. With the Romans
the chief was at ﬁrst a ruler elected for life. This
position, however, was found to be one of too much
authority; and since leaders were absolutely neces-
sary, it was deemed advisable to choose them for
short periods only. That government in this manner
was possible, is due to the” singular power of co-
herence in the Roman state, a power which produced,
as time went on, a uniformity of action which is almost
without parallel, and which is the more astonishing
on account of the multitude of ofﬁcers with co-ordi-
nate authority, to whom the management of matters
was entrusted.
V] PRIMITIVE SOCIETY. l l 3
So far we have considered only one cause which
has counteracted the tendency in the power of the
Chief to decrease as soon as the clan settles upon land,’
and this is one of universal operation. In certain
cases, however, another principle has come into
operation, which has had the greatest effect upon
history. Where the tribal organisation is preserved,
the Chief is usually elected from one family in whose
veins is supposed to ﬂow the purest blood of the
founder; and when, after the settlement upon the
land, the Chief permanently retains his power, the
loyalty which the members of the clan bear to him
is of the greatest importance. We have seen that
among the Hindoos the Chieftaincy died out, and
hence this loyalty passed away with it. Among the
Romans, indeed, the Chieftaincy was retained, but,
for reasons which are unknown to us, the reverence
for a particular family seems to have died away.
Hence in following Roman history we are in general
able to dispense with such considerations‘. Among
other Aryan races, however, the reverse is the case;
the Chief has survived, and the loyalty of his tribe
has been a great factor in increasing his power. The
existence of this state of things has been shown to
exist in Rajputana ;1
Teutonic and Celtic societies ; and it is upon this that
the great modern States have been largely founded.
Not only, then, did the tribes of these races ﬁnd a
leader indispensable, but they had a special respect
for the members of certain families which induced
we are well acquainted with it in
1 Asiatic Studies, chap. viii.
I
114 THE NATURE or PosIT1vE LAW. [v
them always to take the leader from those families.
In other words, we have to take into account in their
case the sentiment of loyalty. With the Romans, as
we have seen, the king was supported for reasons of
expediency. With the Celts and Teutons, to have a
chief was equally a matter of expediency, but in addi-
tion to this there was a habit of obedience to the
members of a particular family, and a sentiment of
loyalty towards them. This sentiment, of course, was
not paramount. The Chief must in any case be a man
ﬁt to rule, though when this necessity could be satis-
ﬁed he must be taken from a certain house. We need
not be surprised to ﬁnd, then, that not only was the
Chieftaincy never in danger of dying out, but that
the concurrence of tendencies produced an opposite
result. From the beginnings of reliable history we
here see the power of the Chief on the increase, and it
culminates at last in the autocracy of the great Sove—
reigns of the Middle Ages.
The development of power is of course intimately
mixed up with the development of Feudalism, a
subject with which we are not here concerned. It
seems, however, as if this sentiment of loyalty was
the factor in society which made it possible for it to
recombine after the fall of the Roman Empire and
the anarchy of the Barbarian invasions. Upon this
recombination the example of that Empire worked,
and hence, passing through the ‘stage of Feudalism,
we arrive once more at the Roman conception of a
State composed of citizens in a state of equality.
vI] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 115
CHAPTER VI.
THE LEGAL AsPEoT or THE VILLAGE coMMUNITY.
I HAVE given this sketch of the primitive condition
of society, in order that we may see how there gradu-
ally arose the modern conception of Law with all its
correlated terms. For this purpose I shall next con-
sider the legal aspect of a Village Community in its
purest state, where Custom is the sole source of law,
and before private property has been introduced; and
I shall consider the legal results that follow when
such a Community expands into a State, when private
property is introduced, and the ties of kinship are
broken down. In this way I shall try to show how
i the ﬁrst terms that appear in fact, whether they are
expressed in words or not, are those of Law and
Duty; how Rights arise with the separation and con-
sequent inequality of interests, and how from this
springs a new kind of law for the regulation of
Rights; and how, ﬁnally, the Sanction of the State
is introduced to enforce the Law and put an end to
private redress. Before attempting this, however, it
will be well to explain the exact position I propose
to take up. Sir Henry Maine has said that, in the
sense of the analytical jurists, there is neither Right
116 THE NATURE OF POSITIVE LAW. [VI
nor Duty in any Indian Village Community ;1 and
more recently, again, that the Romans had not at- ,
tained, or had not fully attained, to the conception of
a legal Right.2 Now, as the following chapters are
intended to trace the rise of the idea of Duty in the
Village Community and of Right among the early
Romans, it would be improper to make any such
attempt without considering how our course is affected
by remarks like the above coming from so great an
authority. I have already noticed that Sir Henry
Maine accepts the Austinian analysis as a good work-
ing theory of law, and I have referred to the opinion
he expresses as to the inﬂuence thata system of law,
worked out on this theory, has among a people to
whom it is perfectly new. The rules of law acquire a
precision and hardness which they never before had
in practice, and the idea of individual Right which
springs up everywhere attracts the natives to the
courts in crowds. When, then, he speaks of the ideas
of legal Right and of legal Duty as not existing in
ancient times, it may be readily admitted that they
had not acquired that distinctness and that complete
dependence on Law which Austin has procured for
them; we may even admit further that they do not
exist distinctly as ideas which require to be spoken
of and to have separate names; everything may be
included under the common notion of jus, that which
binds. And yet it would be hard to deny that feel-
ings spring up corresponding to the sense of Duty and
to the sense of Right.
1 Village Communities, p. 68. 2 Early Law and Custom, p. 365.
vI] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 117
It must be understood, then, that in the following
remarks I am trying to trace the origin of these
feelings, and the manner in which they come to depend
upon Law. When the latter has been fully developed
it may then be advisable to work backwards again and
deduce from it the conceptions of Right and Duty. All
that I at present maintain is, that it was only because
men were already conscious of a sense of Duty that
they devised Laws to deﬁne it, and only because they
were conscious of a sense of individual Rights that they
imposed Laws to regulate them. I am thus reversing
the terms in the Austinian analysis, and must claim
indulgence for any obscurity thereby introduced ; but
this seems to be necessary if the term which Austin
puts ﬁrst is only the result of a gradual evolution.
If now we consider what are the great distinctions,
so far as Law is concerned, between a primitive
society of men and a developed one, we shall ﬁnd
that they consist in two chief points; these are, the
different nature of the relations existing between
individuals and the different ties by which these
individuals are bound together. The ﬁrst point
affects the substance of Law, the second is concerned
with the method of enforcing it. Of these I shall treat
separately, and shall consider ﬁrst how the substance
of Law is affected by the condition of the society in
which it exists.
It is well known that the effect of civilisation is
to withdraw man more and more from direct contact
with Nature. In the primitive state he seems better
to realise his condition and unconsciously to adapt
118 THE NATURE OF POSITIVE LAW. [v1
himself to it; but as the society in which he lives
increases in numbers, and the share of work assigned
to each individual becomes more and more special-
ised, he loses this power of unconscious adaptation,
and has to call reason to his help to avoid the calami-
ties that would otherwise overtake him. This uncon-
scious adaptation in a primitive society is the source
of Customary Law; the conscious adaptation in an
advanced society is the source of Scientiﬁc and Statute
Law. It may be well to develop this idea further.
The smallness of the Village Community produces
two results. It enables the society by a proper
and natural division of labour to supply the wants
of the various members, and it makes it possible
for each member to see how necessary for the general
good is his own work and that of every one else.
Hence we arrive ‘at a highly organised society in
which, nevertheless, there is as yet no division of
interests. We may see here the source of two kinds
The natural adaptation of which I have
spoken above produces a certain kind of agriculture.
There are at ﬁrst no rules that such and such a crop
shall be sown and such and such a ﬁeld kept fallow.
These things are done without conscious regulation,
because actual and continuous contact with Nature
has gradually prescribed them. Again, the natural
operation of the law of the division of labour induces
now one and now another to devote himself to a
special branch of work. The same calling is naturally
adopted by their children, and thus we have the origin
of rules of caste, determining as they do the trades of
of rules.
v1] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 119
members of the community. In this state of things,
then, each member follows a particular calling because
he was born to it, and, if he is an agriculturist, he
follows special methods of agriculture because he has
been accustomed to these from his youth. The course
which will be taken by such a society is various, but
under favourable circumstances it may continue for a
long time in this condition. These‘ circumstances
require that the society should remain small, that its
members should possess no great energy or independ-
ence of character, and that it should be unaffected
from without. One important change, however, that
in this case comes over it must be noticed. The
process of adaptation to which I have referred is not
a continuous one. The community, which at ﬁrst
changes with but little difficulty, ﬁnally arrives at a
mode of life which suits the conditions in which it
ﬁnds itself. Its period of plasticity and its power of #
self-adaptation then come to an end. In future, when
doubt arises on some point of practical life, the only
method of settling it is to refer directly to past
practice. The people, having lost the power of change,
are content to realise the actual customs according to
which they live. This is the origin of Customary
Law proper. A doubt arises as to the method of
cultivating or partitioning some land, and it is no
ordinary exercise of human talent when some village
elder expresses in words the habit which all are con-.V
scious of having followed, and makes a rule by which
he may decide the new case. When the community
is in this condition we have the primitive state of Law
120 THE NATURE OF PosITIvE LAW. [v1
so far as its material is concerned. Human reason
makes no attempt to compose its substance. Its
ofﬁce is conﬁned to discovering and formulating what
this substance really is. All Law at every stage is
meant to assist in bringing man into harmony with
his surrounding conditions. At ﬁrst he brings him-
self into this harmony by the power of self-adaptation
of which I have spoken. Hence the ﬁrst effort of
Jurisprudence is to give form to those habits and
customs which have been naturally evolved. Of I
course a time comes when new' conditions render this
blind attachment to ancient customs impossible;
some totally new case arises which calls for a wholly
original class of rules. A good instance of this is the
case alluded to above, when the British Government
in India brings a system of irrigation to a village and
leaves the village authorities to assign the different
shares to the various members. But though the rules
in this case are clearly composed by the Village
Council, yet we are told that so prevalent is the idea
that all Law originates in Custom, that even these
have the same foundation ascribed to them.1
It will be convenient in following out the different
stages of legal development to keep clearly before us
the different terms ‘of the Austinian analysis. Law,
according to this, is the command of a Sovereign;
it composes Duties and thereby sometimes confers
Rights ; and it is enforced by the power of the Sove-
reign. To the condition of society which we have
been. examining this is clearly inapplicable. Law
1 Village Communities, p. 109.
v1] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 121
has its source in Custom. There is no desire on the
part of the Village Council to impose anything new.
Their only wish is to discover what has always been,
and to ensure its continued observance. The direct
contact with Nature, which the society had in its early
state, has produced the habits best suited for its pre-
servation. From these habits, therefore, it seeks to
deduce its laws. When we enquire whether laws of
this kind can be said to impose Duties and to confer
Rights we must distinguish. We can hardly suppose
that labour is ever so pleasant to man as to prevent
it from being occasionally irksome; so far then as a
village custom assigns to one man a particular kind
of work and expects him to do it, we may say that a
Duty is imposed upon him; but so far as the rules
merely regulate methods of agriculture and so forth,
they probably appear to the members of the com-
munity too perfectly natural for the idea of Duty
ever to arise. This is still more the case with regard
to Rights. I have already alluded to the fact that,
although the community may be highly organised, yet
the function of each member in the little common-
wealth is apparent to all. There has arisen so far no
conﬂict of interests : the advantage of one has not to
be balanced against the advantage of another; each
has his proper task allotted to him, and each has his
proper reward in the shape of an assignment of land
or of a share of produce. Hence the idea of individual
Right does not arise.
Finally, we have to consider the Sanction by
which the law is enforced. Here we must recur to
122 THE NATURE OF POSITIVE LAW. [V1
the peculiar condition of the society we are discussing.
It is not only small, but its members are either
actually bound together by the ties of blood or are
assumed to be so bound together. Hence public
opinion has a force which is quite sufficient to do
away with the necessity of any sanction such as we
conceive it. Sir Henry Maine writes :—
More than all, customary law is not enforced by a sanction.
In the almost inconceivable case of disobedience to the award of
the village council, the sole punishment, or the sole certain
punishment, would appear to be universal disapprobation.1
The result of all this is, that in the Village Com-
munity, in its purest form, there is no Sovereign,
there are no Rights, and there is no Sanction, properly
so. called. There is a law, indeed, but this is not the
result of human legislation. The requirements of
life have in the early plastic state of the society
developed certain habits and customs. So soon as
the power of unconscious self-adaptation is lost, it is
necessary to give to these expression; hence we re-
quire a jurist, but his function is merely formal. He
observes these customs, and draws from them a rule.
We have thus a system of Customary Law established,
probably by the Village Assembly, but their ofﬁce is
solely to declare the Law, not to enforce it. In
general, its rules are obeyed as a mere matter of habit,
and if any member does feel disposed to shake off
their control, the fear of the disapproval that awaits
such a course is sufficient to prevent him. I have
above adverted to the fact that some rules are really
1 Village Communities, p. 68.
VI] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 123
not the result of Custom, but are consciously im-
posed by the Council; hence we have, occasionally,
legislation proper; and Professor Holland enquires
what, after all, is to be done, if disobedience to the
ruling of the Council actually occurs.1 The former
case is glossed over by a ﬁction. We assume that
these rules, too, are derived from Custom. But the
latter is not of a nature to yield to ﬁction. At this
point a Sanction proper must be introduced, and we
must look somewhere for the power which ultimately
exerts the necessary force. But the truth is, that
when we arrive at these results we have abandoned
the primitive state of society and are on the highway
to another. It may be impossible in actual life to
draw the sharp distinctions which are here laid down,
yet none the less valuable are they as affording us
landmarks in the progress of Law. Thus the Russian
mir by no means answers to such a society as that
which we have been describing. It is itself regulated
by the Imperial laws, and we are told that it once
employed a short and sharp method with offenders.
Formerly the method of overcoming the resistance of obsti- -'
nate members, or of getting rid of incorrigible idlers, was to hand
them over for the conscription. The fathers of families, in con-
junction with the starosta (mayor), thus purged the community
of all recalcitrants.2
But it is impossible to map out the different stages
of human development without seizing certain salient
features, and using them as marks to guide us. Such
stages are never separated from each other by a hard
and fast line ; the earlier is prolonged far on into the
1 Elements of Jurisprudence, p. 41. 2 Primitive Property, p. 19.
124. THE NATURE or POSITIVE LAW. [v1
later, and the different ideas peculiar, to each touch
and blend at many points. It may be repeated, then,
that the original source of Law is Custom, that it
\' confers no Rights though it may impose Duties, and
that it requires no Sanction to enforce it. If it is
enquired why Custom is the sole source of Law, I
reply that man is in that stage when he has ceased
to adapt himself unconsciously to the needs of life,
but has not yet‘ learned that reason was given him
that he might continue the process consciously; he
assumes that the substance of all Law is incorporated
in the customs of his forefathers, and it is enough to
examine these and frame rules upon them. If it is
enquired why there are no Rights, I reply that the
mutual relations of all the members are still so simple
that the functions of each individual are clearly re-
cognised by all, and there are no conﬂicting interests
which have to be adjusted by a calculation of separate
Rights. If it is enquired why there is no Sanction, I
reply that the ties of kinship, real or assumed, and
.the smallness of the Society, keep the individual
under a perpetual surveillance which is enough to
check any desire to transgress. If it is objected,
ﬁnally, that no society ever existed in which these
various attributes are found, I reply that recent en—
quiries show that this state of things has been more
or less completely realised, and that this is sufficient
to justify our taking such a society, ideal though it
be, as the original starting-point for legal conceptions.
I have used the term Jurisprudence to denote
the expression in rules of the Law of such a society,
v1] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 125
and it is clear that we are quite justiﬁed in doing
so. Its position may be low,‘ and its functions,
according to our ideas, simple; but its position is no
lower than that which the school of Austin assigns
to it, and it is possible that the original formulation
of a few customary rules represents a considerable
effort of human genius. Given a mass of Law exist-
ing in Custom, the problem is to express it in rules
suitable for application. WVhen the ﬁrst attempt to
do this is made we already have Jurisprudence exist-
ing as a formal science.
But further, I have stated that the object of the
science of Jurisprudence is to regulate the relations
existing between man and man in accordance with
the general sense of justice. It is clear that in our
original society this is done to perfection. Men’s
ideas of justice are always regulated to a large extent
by custom, but originally this is the only standard to
which they conform. That which is customary seems
right; but the only task of Jurisprudence is to pro-
duce rules to express what is customary, hence, if it
fulﬁls its mission with any success, its proper object
will be attained. Custom represents to the people
what is just, and from custom the Law is taken. Law
and Justice have the same standard, and it is probable
that as a rule they will coincide.
There is a further point that we must notice.
One of the chief merits in the Austinian system is the
clearness with which it separates legal from moral
and religious rules. The legal rule is imposed by a
human Sovereign, and is enforced by a legal Sanction.
126 THE NATURE OF POSITIVE LAW. [VI
But in the system I‘have been describing both these
marks are wanting; are we then justiﬁed in saying
that we have anything here which corresponds to
our modern ideas of Law’? If this question is to be
answered in the affirmative, it is clear that we must
seek elsewhere for the distinction between Law and
Morality than in their source and in their sanction.
I shall not, at this stage, attempt a full explanation
of this matter; for the present it must be sufficient
to say that the distinction is to be sought, not in the
source or the sanction of the rule, but in its subject-
matter; the ‘rule of law is merely appendant and
supplementary to the rule of morality. Thus a rule
of morality says “ thou shalt not steal ;” the rule of
law draws the line between my property and yours in
order that we may know how to observe the rule of
morality. It is true that with this test it may seem
hard to distinguish between Law and Morality in
very early times; every rule is alike sanctioned by
immemorial custom, and it may be a greater offence
against Morality to lose caste than to commit murder.
Yet caste in its essence belongs to Law. I have just
instanced as a rule of morality the prohibition against
theft; but in primitive times, before the institution
of private property was established, we require a
different rule to this, and one which must be in-
troduced again if ever the dreams of socialists are
to be realised; I mean the rule of diligence. It is
through the practical failure of this rule that private
property may to some extent be supposed to have
arisen. In early times, however, it must have been
v1] LEGAL ASPECT OF THE VILLAGE COMMUNITY. 127
one of the ﬁrst importance. Assuming, then, that
such a rule of morality existed, it would be the pro-
vince of Law to assign to each man his appointed
task, and this, indeed, was done, when by rules of
caste every man’s occupation was strictly deﬁned. We
have, however, an illustration of what has been said
above, that there is here really no conscious distinc-
tion between Law and Morality, in the fact that these
become moral rules of the strictest kind, and survive
as such long after the institution of private property
has made them unnecessary. We may say, then,
that as long as custom is really the only source of
Law, there is, to the people themselves, no distinction %
between Law and Morality; for all rules carry with
them that idea of necessity which is of the essence of
Morality, and are quite devoid of the idea of expedi-
ency which is of the essence of Law. But if we look
back upon this state of things with our modern notions,
we can introduce the idea ‘of Law at two points. In
the ﬁrst place, we see a division of subjects which
corresponds to a division we recognise between Law
and Morality; thus we should say that a rule of in-
heritance was a rule of law, though a primitive Aryan
would have placed it on the same level as all other rules.
But more legitimately we may say that when the refer-
ence of the rule to Custom has become a mere ﬁction,
as in the case mentioned above, here we have Law
proper as distinguished from Morality. This, indeed,
is perfectly true, but then as soon as this ﬁction has
crept in we have begun to leave our primitive society
and to develop into a new one. It seems clear, then,
128 THE NATURE OF POSITIVE LAW. [VI
that under _a system of Customary Law, pure and
simple, there can be no conscious separation of Law
and Morality. This is only possible when men begin
to see that some old customs may be broken with
advantage, while others must be retained, and when
this process is furthered by the conscious construc-
tion of new‘rules to govern new cases. After this,
the differentiation between Morality and Law is con-
tinually going on, and while Morality depends always
on custom, Law appeals more and more to expediency;
until ﬁnally we get the plain distinction that Morality
is that which every man is assumed to know, Law is
that which he may require to be taught. But although
in this primitive stage we can ﬁnd no distinction
between Law and Morality, yet it would be wrong to
say that Law has here no place. This is the beginning
of things which makes the subsequent development
of Law possible. It is here that man acquires the
notion of Law as something possessing an inherent
force which is wanting to the merely temporary com-
mands of a Father or a Chief, and it is here that he
acquires the habit of acting in accordance with a sense
of Duty, a habit upon which, far more than on
the Sovereign’s power, the future realisation of Law
really rests. While, then, we may say that at this
point there is no conscious separation between Law
and Morality, we need not exclude this primitive
' stage from our views of the evolution of Law. If
Law as a distinct system is not yet apparent, it is
here that the way is prepared for its future appear-
ance; and, as we shall presently see, it is amid a com-
v1] LEGAL ASPECT OF THE VILLAGE COMMUNITY. I29
munity that has long submitted to Customary Law
that a more independent system has the best chance
of growing to maturity. '
It must again be repeated that the picture I have
drawn above has been intentionally idealised; hence
it is not affected by the fact that the Hindoos did
actually arrive at a real distinction between Law and
Morality, and that this is reﬂected in the later codes.
The picture, so far as it is true, is true of the actual
primitive community, and this may be quite unaffected
by the ideal laws which have been manufactured by
the priests. These may, in course of time, come to
be imposed upon the people, but then we have an
entirely different condition of things from that which
we have been describing, the condition in which men
conform their actions to the rules not of Custom but
of a divinely given Law.
In course of time, however, the state of things
which I have been describing passes away. For this \.
there are many reasons, but I may mention as being
the most inﬂuential among them, the introduction
of separate property, and the weakening of the force
of public opinion by the increase of the society and the
relaxation of the ties of blood. The former introduces
the idea of individual Rights as separate from the
general interests of the community; the latter renders
transgressions of the Law possible, and makes it neces-
sary to devise some deﬁnite means of keeping them in
check. I may perhaps hazard the remark that the
direction which Law will take depends upon the rela-
tive rapidity of these innovations. If the idea of
K
130 THE NATURE OF POSITIVE LAW. [v1
individual Rights gains ground while the power of
public opinion is still strong, and if they have the
general assent of the community, we shall have that
development of Law which is most favourable to its
independence of the State power. We must never
lose sight of the fact that the natural development of
Law has, in most cases, been seriously interfered with
by conquests, and it is immaterial whether the govern-
ment thence resulting professes to rule solely in its
own interest, or also in the interest of the conquered
people. The special value for our purpose of the
early history of Rome consists in the fact, that these
disturbing elements are less prominent there than
elsewhere. I am not, of course, asserting that the
development of Law under a conquering race is un-
natural ; this, indeed, is of too frequent occurrence to
be denoted by any such term. ‘ Our desire is to see
how far Law can be developed in entire independence
of the power of the State, or, at least, with the more
assistance of this in cases of necessity. We have
started from the assumption that Law in its normal
state corresponds to a certain common sense of Right
residing in the people, and that upon this it rests in
the last place for its support. In tracing its normal
development, then, we cannot take English Law as our
example, because this has been seriously perverted by
the original conquest of the country, and has become
indissolubly bound up with the State power; nor can
we take the further development of the Village Com-
munities of India under the inﬂuence of the British
Government, for here we have the establishment of
VII LEGAL ASPECT OF THE VILLAGE COMMUNITY. 131
strict law before the moral sense of the people has
made them capable of properly using this advantage.
In the former case we may say that the rights of in-
dividuals are not recognised sufficiently to satisfy
justice ; in the latter, that this recognition goes a
long way in front of popular opinion.1 In brief, we
may say that at Rome we have, so far as we can judge,
the best example of the slow growth of Law in accord-
ance with the common sense of Right, of Law relying,
in general, on that sense of Right for support, and only
gradually falling more and more under the inﬂuence
of the Central Government, as the character of the
individual citizens declined and the power of the
Empire grew. The inﬂuence of this Empire, both in
its law and in its power, has too strongly inﬂuenced
modern nations for us to go to them for the illustra-
tion we are now in search of. I have already pointed
out how, in the Village Community, we have the ﬁrst
appearance of Law as set by Custom, and of Duty as
depending on Law. I am going to search for the
_ l
q,’
other terms of the series in the legal history of Rome.
We shall there see the origin of individual Rights and
of rules of Law regulating these, rules arising partly in
Custom, partly from a direct appeal to the sense of
Right. This process goes on while public opinion is
still in general sufficient to maintain the Law. When,
however, this ﬁnally declines in inﬂuence, we must
search elsewhere for means to enforce it. These are
found partly in religion, partly in the power of the
State. Hence we have to consider the origin of
1 Village Communities,‘ p. 73.
132 THE NATURE OF POSITIVE LAW. [VI
actions at Law, and how these all fall at last under the
Civil Power. In conclusion, we must see how Law
itself gradually changes its nature ; how it passes
under the inﬂuence of J urists and of the State; and
how, ﬁnally, it is placed entirely under the control of
this last. We shall then be in a position to under-
stand the views which modern J urists have taken as
to the object and position of Law, and if we cannot
reconcile them, we may at least get a clear idea of
the differences which separate them. As, then, in the
Village Community we have looked for the rise of
Customary Law and the Sense of Duty, so among the
Romans we look for the origin of the sense of Right,
for the introduction of legal Sanctions, and for Law
in its two forms of Scientiﬁc and of Statute Law.
v11] THE ORIGIN OF PRIVATE RIGHTS. 133
CHAPTER VII.
THE ORIGIN or PRIVATE RIGHTS.
FEW things are more interesting than an examination
of the origin of Law in Rome. It takes its rise
in a state of society utterly different from that which
prevailed in the villages of India, and at the same time
utterly different from that of which we have any experi-
ence at the present day. Law in the Village Commu-
nity was something which the individual instinctively
obeyed, his only reason that all his ancestors had done
so, so far as he knew, before him, and certainly all
his companions did so now. There were many distinct
rules which regulated his acts, but they existed alto-
gether outside himself. The idea that he could control
these rules, just as much as they could control him, had
not yet arisen. If, however, we place ourselves at the
very beginning of Roman society, we ﬁnd that all this
has been left behind. That the Romans at some stage
of their history, in Latium or elsewhere, had passed
through this state cannot be doubted, but their history
is important to us because they passed beyond it.
Customary Law, if submitted to, rivets its fetters upon
a people; if not submitted to, these fetters are soon
thrown off, and the next stage begins. In all this
134 THE NATURE OF POSITIVE LAW. [VII
much is due to the native temper of the race, and much
to surrounding circumstances. The Romans early dis-
played an independence of character which decided
their whole career. Hence with them the Village Com-
munity was merely a transitory stage. When we ﬁrst
come upon them the old order of things is dissolving and
is giving way to a new one. Now the chief point in the
old order of things lay, as I have already remarked, in
the close intimacy of the individuals, produced by com-
munity of blood and community of interests, or by kin-
ship and common property. The new order, then, is due
to the relaxation of the ties of blood and the rise of
separate property. This relaxation of kinship, however,
is only partial ; the rise of separate property does not at
once abolish common property. Two causes, neverthe-
less, give rise to that independence of the individual
which now becomes the characteristic mark of society.
In the old order the individual had not emerged from the
close union of the community: in the new order he has
thrown off most of this inﬂuence, and though, if not a
pateifamilias, he is still in the circle of the family, yet
he has to a large extent acquired independence. But
this again in its turn is only a transitory stage. Inde-
pendence brings with it its own inconveniences, and we
pass rapidly on to the third stage, in which the individual
is bound to a large extent to merge his own will in the
common will of all, to become a subordinate member
in a State. In the ﬁrst stage and in the last man is
equally subordinate ; but his subjection in the ﬁrst is
due to instinct; in the third, if not due to reason, it is
at least sanctioned by it. The simple relations of the
vu] THE ORIGIN or PRIVATE RIGHTS. 135
Village Community are arranged, not perhaps without
foresight, but largely by a gradual and unreﬂecting
perception of what is best adapted for its preservation.
Man, in an early state of society and living in direct
contact with nature, is either quick to perceive what
practices will conduce to his welfare, or is at least beaten
in the struggle for life by those who perceive this more
successfully. The members of a Village Community
are therefore all subordinate, but subordinate to a
mysterious power which they do not understand, which
dictates to them their customs, and to which they
render obedience. In the second stage man has escaped
from this subjection to instinct. He now regards him-
self as the arbiter of his own destinies, and lives in a
state of equality with others who are in the same posi-
tion. But this cannot last. ‘He soon discovers that
the community of interests which instinct taught is no
less prescribed by reason. Hence he passes again into
a state of subordination, but now it is continually
regulated by foresight and contrivance. The Village
Community was a natural organism : all the parts
obeyed their proper laws, but the whole was governed
immediately by Nature. The early Romans were in
a state of mere transition, and were the beginning of a
Political Community rather than such a Community
itself. The State is a machine : here again all the
parts obey their proper laws, but the whole, though
governed of course ultimately by Nature, is governed
immediately by man : all the arrangements are made
with human foresight and calculation. Each of these
stages is full of interest, and certainly, not least so, that
' 136 THE NATURE OF POSITIVE LAW. [VII
intermediate one from which has arisen the state of
things in which we ourselves live. It is not of course
intended that all peoples pass through these three
stages ; they do, however, serve as types to which all
more or less conform. If, now, we consider the legal
aspects of these three systems, we shall ﬁnd important
distinctions. In the ﬁrst, as we have seen, there is
no marked feeling of individual Right. The ﬁrst idea
that presents itself is that of Customary Law, binding
the individual to sundry acts, and thereby imposing
upon him Duties. He takes his share of the produce of
the soil indeed ; but as this follows as a matter of course,
and no one attempts to deprive him of it, he does not
realise it as a Right ; a Right, indeed, is often not real-
ised till it is violated. The acts he has to perform,
however, cannot fail sometimes to be irksome to him: in
other words, he feels them binding upon him as Duties.
In this state then, if we may be allowed the expression,
all Law is Public Law ; there are no Rights except such
as the community owes to the individual, and the
inﬂuence of Law is felt only in the Duties it im-
poses. In the next state we start from a different
point ; not abruptly, indeed, for Customary Law does
not at once lose its sway, and the change, like all the
processes of Nature, is a gradual one. Another idea
is introduced, and in the case of the Roman people
we seem to be able to trace it largely to their warlike
character and habits. While the Roman is still cul-
tivating his plot of common land according to ﬁxed
rules, and taking his share of the produce in accordance
with custom, without feeling that there is a Right which
VII] THE ORIGIN OF PRIVATE RIGHTS.
137 v
specially belongs to him, and which needs defending
against the world at large, he is getting other ideas of
acquisition. When he goes out on a foray and brings
home cattle and slaves as his booty, he now feels that
a distinct Right in these things attaches to himself
by virtue of the strength and valour that won them.
Toil in the ﬁeld every one engages in, and from this
every one reaps his due reward. But here is some-
thing in which he differs from the rest. He has got an
advantage which they have not, and as his own right
arm has won it, he experiences a certain privilege in his
possession of it, the feeling of which lies at the founda:
tion of Roman Law. It is hardly correct to object
to this that it is a mere confusion of Might and Right,
and that we cannot attach much weight to Rights which
spring from mere lawless anarchy. With the Rights
in question it is not so. Men in those days are governed
much by Morality, and the Morality of the time favours
this plundering of strangers. It is not by stealing
from one of his own clan that the Right arises, even
supposing that in very early times such a thing is ever
done. But the world outside the clan is fair plunder,
and the prize thus obtained is, according to primitive
notions, earned quite as honestly, and certainly far
more honourably, than the fruits of the ﬁeld.
There is also a certain intrinsic probability that
the idea of separate ownership will arise in this way.
The owner ﬁrst realises his Right when he sees the
difference between himself and other men. But so
long as the community restricts itself to agriculture,
this difference is not felt, since every one gets his fair
‘6
138 THE NATURE OF POSITIVE LAW. [vII
share of the produce. Labour in the ﬁeld brings its
due reward to all, but valour in war brings its special
prize to the warrior who excels in it. The same idea
then, which in the present day founds ownership
upon labour, in those days founded ownership upon
valour. What his own right hand had won for him
the conscience of the capturer approved that he
should keep. The tradition of this state of things was
kept alive in the ceremony of the actio legis sacra-
mento, and Gains explains that the wand was used
thereto represent a spear, because the best title to
ownership was founded upon capture from an enemy.1
A It is in accordance with this that the earliest
Roman property consisted of such things as it was
worth while to make a raid for, slaves and cattle
(familia pecuniague); and that the original word for
property denotes that it has been captured by force
(mancipium, manu-cajotum). So, again, when the
idea of a friendly transfer of property arises, this
must be assumed to be a transaction of the same
kind, and as a later ﬁction evades the difficulties of
law by a friendly action (jure in cessio), so in primi‘
tive times a sale seems to- have been effected by a
friendly capture (mancijoatio). The frequency of this
act of seizure seems, too, to have demanded a corre-
sponding copiousness in words. It is signiﬁed at
ﬁrst also by emere and rapere; and when a more
civilised age learns to distinguish between different
kinds of taking, the former is promoted to denote
purchasing, and the latter, as soon as robbery loses
1 Gains, iv. 16.
v11] THE ORIGIN or PRIVATE RIGHTS. 139
its credit, is degraded to the idea of plundering.1
This prominence of force as the foundation of special
privileges among early peoples is of course well
known; attention has been called to it in several
places by Sir Henry Maine, and especially in refer-
ence to the confusion between the ideas of kinship and
of subjection to a common authority.2 It will not be
necessary for us to go through the evidence on this
point. It lies in the marks which early ideas and
manners have left on language, on religion, and on
customs, and these are adequately treated elsewhere.3
It is sufficient for us to recognise how the idea of
force lay at the root of old Roman ideas, and not
least at the root of their ideas on Rights. Within
the circle of the clan, matters were still governed by
the law of custom, and the instinctive obedience paid
to this prevents, as we have seen, the feeling of
separate, individual Rights from arising. But when
the warrior goes outside his own clan, the booty which
he then captures comes to him as his own, and we
thus have the foundation of a new system of law.
The case, of course, is slightly altered when we con-
sider spoil taken by the combined warriors of the
clan, for this must be divided by the leader amongst
the individuals, and some reserved for those who have
stayed at home. But this, if not a later develop-
ment, at least allows room for the other system to
ﬂourish by its side. In fact the whole thing has
1 Ihering, Der Geist des Ro'mischen Rechts, i. 110.
9 Early Institutions, p. 68.
3 Early Institutions, p. 312; Ihering, Der Geist des Ro'mischen
Rechts, i. 113 ; Mommsen, i. 175.
140 THE NATURE OF POSITIVE LAW. [VII
existed down to modern times, and prize of war
becomes the captor’s property now as it did in those
early times. We are not accustomed to conceive of
Drake’s sailors as feeling many stings of conscience
when they plundered a Spanish galleon, and they
probably looked with much complacency upon the
property which they acquired by this very ancient
title. _ The fact is, that inter-tribal relations then were
carried on, as international relations are now, accord-
ing to certain rules, rules indeed which sprang more
immediately out of the state of morality of the people
than do the rules of modern diplomacy, but which were ,
none the less perfectly well known. It is possible,
indeed, that we ought rather to speak of rule ‘than
rules, for the practice even of much later times is
summed up in the maxim, “qua; ex hostibus capiuntur
jure gentium statim capientiumﬁunt.” 1 But though
the rule is thus simple, it is not uninteresting to trace
the course of events by which it is seen to be the germ
of modern International Law. This rule, carried out
originally between tribe and tribe, gives rise to the
notion of separate property. The idea thus intro-
duced within the tribe is the foundation of a large
part of Private Law. From so small a beginning do
we obtain ﬁnally the opinions of Papinian, of Ulpian,
of Paul, and a great part of the Digest. Finally, the
idea of Law and Order makes its way beyond the
conﬁnes of the nation, and asserts its claim to rule
in international affairs. The Roman Law then, that
has been maturing all this time under the shelter
1 n. 41, i. 5, 7.
VII] THE ORIGIN OF PRIVATE RIGHTS. 141
of the State, once more returns to that wider sphere
from which it started, and is accepted as the founda-
tion of International Law. If, between nation and
nation there is still no arbiter to avert bloodshed in
the last instance, yet there are at least rules which
tend to defer such a catastrophe, and which mitigate
its evils when it does come. I shall have occasion
further on to show how this foundation of Rights upon
violence was not connected as a rule with violence in
private life. Forcible though it was in its origin, yet
this none the less commended it to the conscience of
the acquirer and the assent of his companions.
We thus see the sense of individual Right in its
very origin. In the'previous state of legal conception
we have seen that we can detect Law, because there
exist rules to which men conform their actions, and
Duty, because these rules, even though uniformly
obeyed, cannot fail to be at times irksome; but that
the sense of individual Right has not yet arisen. Yet
even while this is going on a change is begun. The
individual who within the tribe obeys these laws and
performs these duties, and obtains such reward as is
common to himself with everybody else, ﬁnds that
outside the tribe he can introduce a difference between
himself and the rest ; his valour can win him booty
which shall belong to himself alone, or at least to his
family. There is here then at ﬁrst no Law ; there is
only the sense of individual Right. Law springs
up afterwards to regulate the Rights which are thus
already in existence. There is also no corresponding
Duty; for the Right thus obtained commends itself
142 THE NATURE OF POSITIVE LAW. [VII
equally to the approval of the rest. This we see by
the idea of honour which is at ﬁrst held to reside in
the title of robber. We may, indeed, suppose that
those plunderings which constitute a violation of
property, which go on within the tribe and come
under our modern notion of robbery, are at ﬁrst un-
known. There is, therefore, no attempt at infringing
the Right. It may be objected that, as I have re-
marked above, a Right is often not realised till it is
infringed. But the objection here would be useless.
For the feeling of individual Right to arise two things
are necessary; there must be the positive enjoyment
of someadvantage, and there must be a consciousness
that others are without it. In the old Village Com-
munity we have the ﬁrst factor, but the feeling of
Right does not arise because the wants of all are
simple and are alike easily satisﬁed. The tillage of
the soil does not call forth the different qualities of
men so as to show the essential differences that nature
has placed between them. At ﬁrst the bountiful soil
yields an equal return to the simple labour of all.
But in the ﬁght man discovers his personal advan-
tages; a different result accrues to each according to
his strength and valour; and if discontent should
arise at the separate ownership ensuing therefrom, it
is stilled by the general applause which bravery wins,
and the shame which prevents the less successful
from calling attention to their misfortune. We may
regret that the earliest Rights should be founded on
violence, and indeed this fact brings its own evils in
its train. As the tribe increases, and the bonds of
vIIl THE ORIGIN OF PRIVATE RIGHTS. 143
kinship are relaxed, a lesson is taken from that system
which prevails against the world outside. Plunder
and robbery against other tribes are followed by theft
and violence within the tribe itself. Then we have
the other terms of the legal analysis introduced.
Laws are required to protect Rights, and this is
effected by imposing Duties and threatening Sanctions.
In spite, however, of these consequences, and in spite
of their objectionable origin, it is important to seize
clearly the idea of Right in this its most elementary
form. The individual bears in himself the foundation 1.
of his own Right. This has been denoted by ascrib-
ing the origin of the Right to the subjective will of
the individual.1 New Law, when it comes, exists for
only two objects, to regulate Rights and to protect
them. Here the Right is so simple that it requires
no regulation, and it exists by the common consent
of all, so that it requires no protection. These con-
siderations are of importance for deciding upon the
ultimate elements of Jurisprudence.
But though we ascribe the origin of individual
Rights to violence of this kind, yet we must notice
also the other inﬂuences that are at work. For this
purpose we ﬁnd instructive illustrations in the actual
manner in which the common property of the House
Community and of the Joint Family in the present
day is always tending to division. Wherever one
member is conscious of contributing more largely
than others to the common fund, he becomes relucs
tant to lose the advantage of his personal skill.
1 Ihering, Der Geist cles Ro'misclten Rechts, i. 107.
144 THE NATURE or POSITIVE LAW. ' [v11
Thus, even in Montenegro, spoil of war is retained by the
taker, and on the Adriatic coast the proﬁts of distant maritime
trade have from time immemorial been reserved to seafaring
members of these brotherhoods.1
In the same way it is on the question of trading
proﬁts that the Hindoo Joint Family is most liable
to dissolution. These cases have a special interest in
connection with Mommsen’s theory that the site of
Rome was selected for its maritime advantages, and
that commerce held a high place in early Roman life.
The combination of these two causes, the separate
ownership in prize of war and in proﬁts of trade, may
have produced that early realisation of private pro-
perty in all its distinctness, which is specially
characteristic of Roman Law.
‘ We are thus led to the axiom that differences in
property arise because there are differences in indivi-
duals, and these differences may be shown in many
ways. In the present day they are shown by differ-
ences in manual and intellectual skill. In primitive
times, however, the chief means of showing personal
superiority was in the battleﬁeld, and in the battle-
ﬁeld accordingly private ownership arose. It is pos-
sible, however, that this principle may itself have its
drawbacks. Natural instinct conducted primitive
man to a system of common property. When he
woke to his own powers this was thrown aside; he
separated his own interests from those of his fellows,
and the system of modern property is the result.
Whether here, too, a maturer use of reason will show
1 Early Law and Custom, 1). 253. See also the rest of the passage.
VII] THE ORIGIN OF PRIVATE RIGHTS. 145
that Nature was right after all, and when or how we r
shall return to the old system we need not speculate.
It is sufficient to point out that it is no small part of
the province of Law to reconcile these conﬂicting
principles of socialism and individualism.
We have, then, made our ﬁrst step into that new
condition of Law which we are examining. We have
seen how the idea of separate property, and of Rights
corresponding thereto, may reasonably be supposed to
have had its origin. But we are still only on the
threshold. We have established a property in mov-
ables indeed, but the question of immovables is still
untouched. To this we must now turn our attention.
Before doing so, however, it may be remarked
that the order I have adopted, that, viz., of attri-
buting to private property in movables a more
ancient origin than to that in land, has recently
received conﬁrmation in a striking and interesting
manner. Private property in land when once estab-
lished is of two kinds, allodial and feudal ; the former
denotes an absolute ownership free from all inter-
ference from others, except of course by way of servi-
tude; the latter an ownership which is not absolute,
but which depends, originally in fact and later in
theory, upon certain relations existing between the
owner and the person to whom he is indebted for his
property. The words are properly applied to Rights
in land among Teutonic races ; but we may say that
the Roman ownership too is allodial, and that this
owes its origin to the previous institution of private
property in movables. The point, then, to which we
L
146 THE NATURE OF POSITIVE LAW. [VII
have had our attention recently called is, that the
feudal tenure was not originally applied to land, but
that this also arose out of gifts of various movables,
such as cattle and arms, which were made by the
Chief to his followers.1 In both cases we see the
truth of the remark that “an ancient Law of Mov-
able Property may deeply affect a Law of land.” 2
I shall now attempt to give a sketch of the prob-
able origin of property in land among the Romans.
It is of course almost entirely conjectural, and is
meant rather to illustrate by a particular case the
general results of recent enquiry than to give a
correct account of what really took place. Of the
initial and ﬁnal stages, however, we can be certain,
and there are sundry traces of the interval between
them which will serve to guide our steps. We begin
with different clans settling down upon a tract of
country and cultivating it, so far as each clan is
concerned, in common; and when they have united
to form a nation we ﬁnd the territory consisting of
two parts ; one of these is divided into parcels of land
which are held by different families as private pro-
perty; the other remains public in name, but the
enjoyment is really conﬁned to those patrician
families who have in some way or other obtained
possession of it. We thus have the agri jorivati and
the ager publicus. Now we can trace the foundation
of Rome with some certainty to the union of three
tribes; let us then go back a step beyond this event
and consider the constitution of one of these tribes
1 Early Law and Custom, p. 346. 2 Ibid.
V111 THE ORIGIN OF PRIVATE RIGHTS. 147
separately. In regard to this we must make one of
two suppositions. The separate clans of which it was
composed were united either artiﬁcially by agreement
or treaty, or naturally by ties of blood. The latter
case is certainly far the most probable, and we shall
assume its reality. In this case it will not be un-
reasonable further to suppose that it was the tribe, as
thus composed of a union of related clans, which
migrated into Italy and settled in Latium. The
process is similar to that described in Early Institu-
tions, p. 71, where the Vellalee, entering as one body
into a district of Southern India, and possessing
themselves of the territory, afterwards separated into
their different clans and founded a number of Village
Communities. The chief distinction is one which I
have pointed out before, and consists in the different
extent of country at the command of each clan. In
India this was very considerable, and each of them
might settle where it liked and have a waste or pub-
lic territory of indeﬁnite extent. In Italy this could
hardly have been the case. It is not improbable that
' here an allotment of the district would take place
among the different clans. I have so far discarded
the legendary notion that the Romans were originally
a band of outcasts, and have treated them as a
regular Aryan tribe, sprung, or pretending to have
sprung, from a common ancestor, developing in. the
regular way into different clans or houses, and main-
taining this division in their migrations from other
lands. But though we may perhaps regard this as a
plausible conjecture for the Latin peoples generally,
148 THE NATURE OF POSITIVE LAW. [VII
yet the recent observations of Sir Alfred‘Lyall allow
us to assign an origin to Rome more in accordance
with Roman tradition. I refer to his account of
the gradual formation of a new tribe formed of
refugees and outcasts from others of established
respectability, and of the reproduction in these of
clans or families corresponding to the pure clans
which have been left behind elsewhere. It will be
enough simply to refer to his account of the rise of the
Meenas in Central India,1 and. to Sir Henry Maine’s
summary of the materials thus brought to light.2
We are thus able to see the probable meaning of the
Roman traditions as to the origin of the city, and to
realise how it came to contain all the distinctions of
family or house which are proper to an ordinary tribe.
The succeeding events may be assumed to be the
same, whether these traditions are correct or not, and
that I may not have to bear the burden of all the
conjectures _I am making, it may be some assistance
to us if I quote the following passage from
Mommsen :—

‘ The Roman territory was divided in the earliest times into a
number of clan-districts, which were subsequently employed in
the formation of the earliest “ rural wards” (tribus rusticce).
Tradition informs us as to the tribus Claudiana, that it originated
from the settlement of the Claudian clansmen on the Anio ; and
that the other districts of the earliest division originated in a
similar manner is indicated quite as certainly by their names.
These names are not, like those of the districts added at a later
period, derived from the localities, but are formed, without
exception, from the names of clans; and the clans who thus
1 Asiatic Studies, p. 162. 2 Early Law and Custom, 1:). 273.
VII] THE ORIGIN OF PRIVATE RIGHTS. 149
gave their names to the wards of the original Roman territory,
are, so far as they have not become entirely extinct . . . the
very oldest patrician families of Rome; the Aemilii, Cornelii, Fabii,
Horatii, Menenii, Papirii, Romilii, Sergii, Veturii. It is worthy
of remark that not one of these clans can be shown to have
taken up its settlement in Rome only at a later epoch.1
The word tribe is of course here used in a different
sense to the one we are at present ascribing to it.
If, then, we regard the tribe territory as thus divided
among the clans, we shall have at this stage otgri
priuotti, in the sense at least that they belong to the
clotns in separate ownership, and an tiger public/us,
the common undivided land of the tribe. That there
should be such land is natural, for the territory of the
tribe was never quite ﬁxed. Wars would probably be
undertaken by the entire tribe, and land thus con-
quered would be added to its public domain. More-
over, as an individual could be received into a family
by adoption, so it seems a foreign clan could be re-
ceived into the tribe. An allotment from the tiger
joublicus would then be made to it. Such a case
seems to have happened at any rate at a later time,
when the Sabine Appius Claudius, with his clansmen
and clients, was allowed to settle at Rome. I shall
assume then that the tiger joublicus, as thus described,
was identical with that of a later date. Let us next
turn our attention to the course of events inside the
clan. Here, I think, we must suppose that the division
of the clan into a number of co-ordinate families has
already taken place, for we have no trace in Roman
history of a time when such is not the case. The 'l V
1 History of Rome, i. 37.
150 THE NATURE OF POSITIVE LAW. [VII
position of the chieftain cannot be ﬁxed with pre-
cision, but probably he had no extensive power, and
matters were in the hands of the heads of families.
We have further to consider that after the reception
of the allotment of land by the clan, an assignment
was made at some time or other of a small home—
stead to each family. The existence of this home-
stead is indeed an original fact in Roman history.
About it there is no doubt; the only question is
whether any land beside this was held as separate
4 property. This homestead consisted of two jugera
(about an acre and a quarter), and was obviously
meant to afford a site for a house, with such garden
ground as convenience might require. The assignment
of such plots is placed by tradition at the very begin-
ning of Roman history, and is ascribed to Romulus.
Two acres a piece were said to have been ﬁrst of all assigned
by Romulus to each man, and these, as following the heir, were
called herea’ium.1
Upon this matter, M. de Laveleye remarks :—
The heredium, like the lot assigned to the Spartans, was
regarded as inalienable, because it was the necessary home of the
family, and even to the last days of the Republic it was a dis-
grace to sell it.2
. \ After this‘ allotment had been made, there was still
left the greater part of the clan land. From this it
obtained its agricultural produce, and doubtless some
system of common tillage at ﬁrst prevailed. What
form this took, whether there was an actual division
of the produce, or whether there was a redivision of
1 Varro, quoted in Primitive Property, p. 164, note 1. 2 I bid.
v11] THE ORIGIN OF PRIVATE RIGHTS. 151
plots from time to time, it is now impossible to say.
It would be interesting, too, to know whether the idea
of possession arose in occupation of the tribal common
land, or in occupation of that belonging to the clan.
At any rate, if such occupation of the latter took
place, either subject to regular change by redivision,
or to occasional change when new families had to be
provided for, this would correspond with sufficient
exactness to the later idea of possession. The ancient
possession would be an actual occupation with an
intention to retain so long as was permitted by the
clan; the modern possession is an actual occupation
with an intention to be owner, though no such title
has been directly recognised by the State. We could
thus account for the tradition which Cicero records
of the state of society in the ﬁrst days of Rome, a
period which is‘always expressed by reference to the
reign of Romulus. “ At that time men’s wealth con-
sisted in cattle and the occupation of ground ” 1
(locorum possessionibusgue). Further on we have
another record which may give us a hint that will be
useful. “ N uma ﬁrst divided among the citizens man
by man the lands which Romulus had taken in war.”
Remembering that we have concluded from other
sources that the idea of separate property ﬁrst arose
in war, though it was then conﬁned to movables, we
may ﬁnd some reason in this tradition for supposing
that similar circumstances ﬁrst produced separate pro-
perty in land. While the members of the clan were
holding land on only a temporary tenure, there came
1 at. a Rapulx, ii. 9-14. '
152 THE NATURE OF POSITIVE LAW. [VII
the accession of territory owing to the early conquests
of the tribe. We are supposing that all this goes on
before the union of the tribes and the founding of
Rome. Probably an opinion has already been growing
that it would be well to hold farms as private property,
and the fact that these new lands have been taken
in war makes it not unnatural to put this opinion in
practice; for there is here an obvious resemblance to
the case in which private property in movables has
long been recognised. A certain plausibility is lent
to this view by the etymological connection which
some see between the word for farm, proeolium, and the
word for booty, loroeola (prce—hicla from proe-henolere,
jorenclere).1 The effect of such a proceeding upon the
lands held by the clans could not fail to be consider-
able. The clan not only has before its eyes a system
of private property in land, but in this fresh assign-
ment it has got rid of a large number of families whom
it had accommodated with difficulty on its own estate.
There is nothing, then, to prevent the elders, or other
governing body of the clan, from making that division
which convenience has long dictated ; the clan lands are
divided, and the system of private ownership of land
is fully established. The ager publicus of the tribe, in-
deed, still exists, and several reasons forbid such a mode
of dealing with it; but the above sketch may possibly
represent to some extent the manner in which the
agri privati arose. That there was originally common
land belonging to the clan seems clear, and equally so
that this disappeared at an early date. It is known,
1 Ihering, Der Geist cles Ro'mischen Reeht‘s, i. 112, n. 15.
VII] THE ORIGIN OF PRIVATE RIGHTS. 153
too, that allotments of land of about seven jugera in
extent were from time to time made to the plebeians,
and it seems probable that the patricians would have
instituted private property in land for themselves,
before this was conceded to their inferiors. What-
ever value, however, may be attached to the above
sketch, we have before us the materials with which
we really want to deal. Private property has been
extended from those movables to which it was at ﬁrst
conﬁned, and now exists over land also. The ori-
ginal title by which it was held, that of conquest, has,
indeed, not been lost sight of, but another principle
has come into play. Whether the land has been
taken in war and is apportioned by the tribe, or
whether it belonged to the clan and has been allotted
by the clansmen, in each case the individual no longer
ascribes his Right entirely to himself. This element,
indeed, is not wanting. The land belonged to the
whole clan collectively before, and now that the in-
dividual has his separate share, he only has what
belonged to him. But this division is founded upon
the general consent of all. The owner may seem to
himself to have as independent a title now, as ever he
had before, to the slaves and cattle he captured from
an enemy ; but it is really not so. In course of time,
i this community, made up of individuals who only
carry their mutual independence one step further by
making a division of the land, will grow into a State.
The State will come to be something which men will
conceive of as apart from and superior to its subjects ;
and whatever Rights men possess will more and more
154 THE NATURE OF POSITIVE LAW. [VII
come to be looked upon as Rights allotted by the State,
in the same way as was allotted in ancient times, the
common land of the clan. We may see here the germ
out of which the idea of legal Right as opposed to mere
individual claims will subsequently arise. So far I
have attempted to sketch the probable manner in
which Rights of ownership over things movable and
immovable took their rise. The original title to things
‘ movable was capture in war; to things immovable
allotment by the clan. It is needless to say anything
about the title which to later ages seems most natural,
title by occupation. It is shown with much clearness
in Ancient Law, p. 250, that this idea arises in a later
age, when the original diﬂiculty of regarding things
as private property has been got over ; a tendency then
sets in to provide everything with an owner as soon
as possible, and the Right is accordingly conferred by
the lawyers upon the ﬁrst occupant.
But having thus examined the original investitive
titles, we cannot proceed without making some slight
enquiry as to those which were transvestitive. As soon
as the community of interests has been broken up, and
the wants of the individuals are no longer satisﬁed
in the simple way that originally prevailed, and which
resembled modern domestic life more than anything
else we can compare it to‘, men discover that a
means must be found for recovering the advantages
which they have thus lost. Social life consists in
exchanges of all kinds, intellectual, moral, and phy-
sical, between individuals, and the gaps that spring
up when separate property is established must be
vIIl THE ORIGIN OF PRIVATE RIGHTS. 155
bridged over in some way. The elementary form of this
seems, as I have already remarked, to be copied from
the original title by capture. The way of acquiring
property is to seize it with the hand. The elements
of the mancipatio were in existence then, when by an
understood arrangement one party seized his neigh-
bour’s ox, and the neighbour ‘in return seized a slave.
This was, of course, a matter of friendly settlement,
but it was already felt that a transaction which altered
the position of the parties needed some external cere-
mony. There was already the conception of a title
to ownership, a title which consisted in capture, and
hence this idea was naturally introduced the _
ﬁrst attempt at barter. We may next glance brieﬂy at the


kin of con.-


tracts. It is pointed out in Ancient old idea that contract ﬁlled a large place in the " primitive races is wrong. The actions of men are
determined not by agreements with their fellow-men,
but by the station into which they find themselves
born. Indeed, if we consider the circumstances of
primitive times, we shall see that few of the occasions
which in modern times give rise to contract then
existed. The family was sufficient in itself to supply
most of its own wants, and the children and the slaves
were at once agents and servants. Savigny has said
that the object of property (cerm'o'yen, i.c. capability),
including thereunder both property in our sense of
the word and whatever is due by contract, is to extend
the inﬂuence of the individual over the external world;
over physical things by ownership ; over other persons
156 THE NATURE OF POSITIVE LAW. [VII
by contract. But in the ancient world the inﬂuence of
the patery’amilias is almost limited to his property and
his family. The ﬁrst exception to this would seem
to arise when he ﬁnds that his property is insufficient
for his maintenance. He is now driven to consider
what to do. He is already acquainted with the prac-
tice of purchase, and in his extremity he attempts
an imitation of it, which for the moment relieves his
necessities, but leaves him in a burdened condition.
The practice of borrowing we may surmise to have
been nearly as old as the practice of bartering, and
hence to have existed long before the introduction of
money. For our purpose, however, we may consider
it in its later form, and then it almost invariably
consists in a loan of money. All the forms of an
ordinary sale are gone through, but there is no transfer
on the side of the borrower. The transaction is there-
fore incomplete, and the party who is in default re-
mains under an obligation till he completes it by repay-
ment. Thus far I have followed the order laid down
by Sir Henry Maine, and it is with some hesitation
that I now proceed to examine certain points in which
I do not see my way to accepting his conclusions.1
The difficulty that meets us is to discover why
the old word for obligation, nexum, which seems to
denote only a later form which the mancipation took,
should yet come to be used as the most general term,
and should be deﬁned to include “ omne quocl per
libram et aes geritur.”2 The explanation given by
Sir Henry Maine is, that the original ceremony of
1 Ancient Law, p. 320. 2 Ibid.
VII] THE ORIGIN OF PRIVATE RIGHTS. 157
purchase was regarded as imposing a bond on the
parties while it lasted, and that this bond was brought
into greater prominence in a loan, inasmuch as it then
continued as to one of the parties, who, so long as the
loan was not repaid, remained nexus. When, then, in
the progress of legal ideas it was seen that the sale
and the contract were really distinct, and words had
to be discovered to mark this distinction, the old word
neeeum was used in the case to which it seemed most
applicable, and a new word, mancipatio, was introduced
to denote the sale or conveyance. I wish that I could
accept this explanation as perfectly satisfactory.
There seems, however, to be so little in the original
form of sale to suggest that either party is in any way
bound, that I cannot believe that that idea would be
chosen to give a name to it. Perhaps we may ﬁnd
another solution in the original paucity of language
and the difﬁculty of forming abstract terms.
Physical objects acquire names long before men
require to speak of events or abstractions, and we
may well suppose that this primitive ceremony of sale
went on for a long time before a name was wanted
for it at all. The thing which I have originally taken
from the enemy is mancipium ; and so the thing which
I have acquired by purchase is mancipium, in the
' same way taken by my hand. The ceremony is soon
over, and I have no further occasion to think or speak
of it. But when a sum of money is borrowed it is
otherwise. The lender no longer sees a mancipiu'm
before him as the result of the transaction. He
knows, indeed, that he is poorer than he was by a
158 THE NATURE OF POSITIVE LAW. [VII
sum of money, and that the borrower is bound (nexus)
to him to repay it. Hence the transaction is not yet
over. There may frequently arise the necessity of
speaking about it, and it is quite possible that this
form of the transaction, which is really only a develop-
ment of the ﬁrst, is the one which requires a name
earliest. N o attempt is yet made to distinguish, as
is done later on, between the thing and the event.
Hence the same word which describes the debtor
describes the ceremony by which he incurs his debt;
it is .a neoeum. When at a later time it was found
necessary to distinguish between the contract and the
sale, the use of abstract words had become more
familiar. Out of the word mancipium it was easy to
form mancipatio ; hence the most ancient ceremony
is continued under this name, and the original word
newum is retained as a general term. In course of
time this antique form of contract falls into disuse, and
when others are invented, the whole series of events
which they involve are denoted by the abstract word"-
obligatio. This solution of the difficulty is little more
than conjecture, but it seems to me to possess some
probability, and renders it unnecessary to derive a name
from a part of the ceremony which is hardly likely in
the ﬁrst instance to be very prominently realised.
It only remains to consider in what light the '
Right, resulting from a contract concluded by means
of the neocum, was regarded. At ﬁrst we can hardly
suppose that the notion of Right, as we understand
it, would arise in this connection at all. The idea of
a Right in joersonam, a Right arising from contract,
vII] THE ORIGIN OF PRIVATE RIGHTS. 159
does not develop itself till the number of acts that
can in this manner be claimed from others becomes
numerous. The original jus in personam is intimately
connected with the right of property, the jus in rem,
and it would be foreign to all analogy to suppose that
a distinction between them was readily perceived.
With regard, at any rate, to the formality in each
case, I have pointed out, following Sir Henry Maine,
that no distinction was observed, and the early Roman
can hardly be credited with a distinction in ideas
where he left the outward form untouched. This
contract, indeed, only differed from a sale in that
the right of property on one side was deferred. It
created, if we may so speak, a future jus in rem. This
idea, perhaps, may be carried further. The future
jus in rem does not depend entirely on the action of
another person. The lender need not wait for the
borrower to repay before it arises. That would be
to introduce the modern idea of a jus acl rem. The
primitive course is much simpler. The debtor will
repay the loan if he can, but if not, the jus in rem
which is to belong to the creditor merely, in Austin’s
phraseology, changes its subject. Instead of the
money repaid by the debtor, the person of the debtor
himself is now the res over which the Right arises.
In other words, upon the failure of the debtor to pay
his debt, the creditor immediately proceeds to possess
himself of the body of his debtor. It has been re-
marked that the tendency in early times is to regard
the debtor as a thief. He has indeed broken that
mutual good faith which ought to subsist between
160 THE NATURE OF POSITIVE LAW. [VII
members of the same tribe. It is, therefore, now proper
to deal with him as a stranger, and the same feeling
which prompts the victor to make a slave of the van-
quished, prompts the aggrieved creditor to make a
slave of his debtor. The Right resulting from the con~
tract, therefore, so far as it is regarded as a Right,
cannot be distinguished from a Right of property. The
same Right which the creditor has over the money he
is lending he will have over the money which is re-
turned, and should the money not be returned, the
same Right he will have over the person of his debtor.
The enforcement, indeed, of this latter Right, is not,
as we shall presently see, attended with the same
violence as the original capture of an enemy; for a
Right of property when once established is absolved
from the necessity of repeating in later cases the early
incidents of its origin. These remarks may, however,
illustrate the manner in which such Rights arise.
It may not, moreover, be unreasonable to suggest
that another system of contract was growing up at
the same time in quite another fashion. The contract
of loan was assigned to property law because of its
intimate connection therewith. But it was not long
before men discovered the necessity for making con-
tracts with each other upon other matters than the
borrowing of money. We may, perhaps, assign this
to a very early date. Inside the clan we have seen
that there was originally complete community of in-
terests. No one could decide for himself what he
should have and what he should do. All such matters
were decided by custom. His position in the clan
VII] THE ORIGIN OF PRIVATE RIGHTS. I61
decided, from his birth, both his portion of its wealth
and his duties. There was no private property, and
there was no contract. 1
Now for the origin of private property, we have
looked outside the clan and discovered that it probably
lay in the depredations committed by one tribe upon
another. As, then, we ﬁnd the origin of private pro-
perty, which tends to separate men, in quarrels between
tribes, so, perhaps, we may see in treaties between
them, the origin of contracts, which bind men together.1
Contracts inside the clan were unnecessary. Every
man had his proper duties assigned to himby custom.
This, and the authority of the chief over the clan and
of the father over his family, were sufficient. Now it
has been remarked that new ideas enter into men’s
minds with difficulty, and if we want to ﬁnd their
point of origin we must consider where the resistance
to them was least. This, in the case we are supposing,
was in the relations between clan and clan. It is a
fact that may be observed, even at the present time,
that contract with difficulty makes its way where men’s
relations have hitherto been ruled by status. It is
clear, then, how great must have been the resistance
to the original introduction of contract between mem-
bers of the same clan. But between clan and clan, not
only was there no such resistance to its introduction,
but a positive necessity for it was soon felt. Bonds
of some kind must exist, and nothing but contract can
form them. If, again, we consider the evidence afforded
1 It will be seen that this is very similar to Sir Henry Maine’s
suggestion as to the origin of price—Village Communities, Lect. vi.
M
162 THE NATURE OF POSITIVE LAW. [VII
by words, this View will be much strengthened. Side
by side with the word neaum we have the word sponsio.
The newum referred specially to property, and if it
included certain contracts, these were only such as at
ﬁrst could not be distinguished from property. But
when men’s attention was called away from property
and ﬁxed upon contract proper, i. e. upon promises en-
tered into by stipulating parties, they spoke not of a
neaum but of a sjoonsio. That this was the generic word
for all contracts we learn from Paul, D. 50, 16, '7:
“ ‘ Sponsio’ appellatur non solum gum per sponsus
interrogationem ﬁt, seal omnis stipulatio promissio-
que.” It is impossible, too, to avoid passing from
this assertion to the well-known Greek meaning of
the word. Treaties between different peoples were
concluded with a religious ceremony, that of pouring
out libations to the gods. Hence a treaty was called
awovSdt. If, then, we accept this as a conﬁrmation
of the view laid down above, we can place our original
contract in the treaty between tribe and tribe, and
then obtain its subsequent stages. It is true, indeed,
that when contract at a later period has been deve-
loped, and has been taken under the protection of the
State, this is the very sphere from which its operation
is excluded. This is recognised by Gaius 94),
who expressly asserts that there can be no contract
between nations, “ because, if any violation of it occurs,
redress is obtained not by legal process but the right
of war.” This a error, however, arises from importing
into those early times conceptions of a later date.
It is recognised, of course, that there is no power to
vII] THE ORIGIN OF PRIVATE RIGHTS. 163
enforce the treaty, and hence it is placed under Divine
Sanction. The original contract, then, exists outside
the domain of Law. It is a promise, accompanied by
a religious ceremony. Any violation of it, therefore,
is a thing which may draw down the wrath of the
gods upon the whole people. Thus when an indivi-
dual has violated it, that the people may not share in
his guilt, he must be given up to the enemy. This
is, indeed, similar to the later 72.0.6668 oleolitio. It must be
observed that in international matters there is a curious
renewal of the old paternal authority, and this fact
shows clearly, how the idea of any such power being
inherent in the king had vanished from the Roman
mind. When a treaty had to be concluded it was
done by a pater patratus chosen for the purpose, and
he acted in the name of the Roman people.1 Hence
the surrender of the culprit was similar to the sur-
render by the father of a child or slave who had
done some damage. The same took place also
when a general had concluded a treaty which was
not ratiﬁed by the people. In this case it is ex-
pressly said that the object was to free the people
from the consequence of violating a religious tie:
“ Ut populus reliyione soloatur.” 2 So, again, the
Roman people themselves could not declare war, and
thus violate a treaty, without the express sanction
of the gods.3 From all this we may infer that the
original contract was a treaty entered into between
different tribes, and supported by Divine Sanction;
and further, that when individuals violated it, they
1 Livy, i. 24. 2 rad. ix. 10. 3 Ibid. i. 32.
164 THE NATURE OF PosITIvE LAw. [m
were delivered up to the enemy that the people might
be safe; and when the tribe violated it, they took care
ﬁrst to have the approval of the gods.
When, then, that process to which have so often
alluded commenced, when the intimacy of the tribe
began to be broken up, a similar necessity to that
which had called for treaties between tribe and tribe,
now called for similar arrangements between man and
man. Nothing in such a case was more natural than
to resort to the same procedure, and the original con-
tract is an agreement ratiﬁed by an oath. If, now, the
violation of an oath had been left to the slow retribu-
tion of divine justice, this might have been incon-
venient for the management of human affairs. It was
a peculiarity, however, of the Romans, that neither
divine nor moral laws were left without suitable
human sanction. The moral law was enforced by the
censors; the divine law was enforced by the priests.
Hence there arose an obvious mode of enforcing con-
tracts, but to this I shall return when we come to
consider the origin of the different actions at law.
We have thus seen how various Rights may be
supposed to have arisen among the Romans, or rather
how there arose those claims of one person over other
persons or over things, with which, under the name
of Rights, Law will at a later time concern itself. We
shall now have to consider how these claims came to
be protected and regulated, in other words, how they
were turned into legal Rights, properly so called.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 165
CHAPTER VIII.
THE PROTECTION or PRIVATE RIGHTS.
ACCORDING to the views maintained by English urists,
Rights date from a time when a State creates them
by laws and maintains them by force. According to
the historical order which I am trying to present,
Rights exist long before legislation has been dreamt
of or a judge appointed. Ihering draws a striking
comparison in this respect between the organisation of
Justice, which is to us a matter of course, and the
organisation of Work, which still only exists in the
brains of dreamers.
We have lived to see the time when a bold claim has been
made upon the State for the “Organisation of Work ;” but great
as may be the conﬁdence which to-day is placed in the idea of
organisation by the State, yet we have hitherto shrunk from
pushing it to so extreme a consequence, and the answer has been
returned: “ Work organises itself ; the State neither can nor
ought to meddle with it.” How then, if there‘ was once a time
when Justice organised itself without the help of the State, when
the State was accustomed to give so little help to individuals, that
they were left to ﬁnd Justice as to-day they ﬁnd Work.1
Strange as this may seem at ﬁrst sight, its truth
becomes evident on a little consideration. In his
Political Justice (ii. 103), Godwin says: “ Man is a
1 Der Geist d-es Ro'mischen Rechts, i. 119.
166 THE NATURE OF POSITIVE LAW. [VIII
species of being whose excellence depends upon his
individuality ; and who can neither be great nor wise
but in proportion as he is independent.” The idea of
this remark, which was uttered as a protest against
the intrusive and all-pervading power of government,
may have been realised, though dimly, by the primitive
Romans, and they may have shrunk from the early
attempts to organise Justice as we shrink from the
task of organising Work. Each involves the inter-
ference of Government in complex matters affecting
intimately the welfare of the individual. No one in
the present day affirms that Work organises itself in
a perfectly satisfactory manner. The individual loss
and suffering that are inﬂicted may not unreasonably
be compared with the disorder that arises under a
system of Self-help. The objections to attempting a
change lie partly in the complexity of the subject,
partly in the idea that only under the present system
can the energies of the individual be evoked and
universal idleness prevented, and partly again in the
feeling that a government charged with such functions
would not improbably exercise an intolerable tyranny.
Similar motives may have retarded the rise of State
Justice in Rome. The problem in itself was difficult and
only to be solved gradually by long experience. The
Rights in question were felt to depend upon the indi-
vidual ; their strength layin the consciousness of their
fairness, backed up by an intention to maintain them ;
and there was no immediate reason why the indi-
vidual should resign a claim based upon his own
conscience, and entrust it rather to the general con-
VIII] THE PROTECTION OF PRIVATE RIGHTS. 167
science of the people. If there was such a feeling,
subsequent events have showed that it was not alto-
gether unjustiﬁed. The above parallel, though it may
seem fanciful, may yet help us to realise the fact that
Rights existed in Rome long before the legislator or
the judge had appeared, and that these latter were
only evolved slowly and gradually in the course of
time. The writer quoted above has some ingenious
remarks on the inherent badness of all Law, because
it fetters men’s actions, and of all judicial decisions,
because they fail to take account of the special cir-
cumstances of the case; hence he argues for the
abolition of law, and the decision of every fresh case
on its merits. As I shall show later on, the com-
plexity of human affairs makes this impossible, because
Law must become in course of time a technical matter.
But although this is a good reason for not abolishing
State Justice at the present day, it is possible that
some such considerations as the above stood in the way
of its original establishment, and that the people only
gradually assented to the institution of Courts of
Justice. But, of course, in this instance the various
objections have been got over. The complexity of
affairs was conquered by the unremitting toil of gen-
erations of Jurists, and the records and fame of the
Roman Law are their enduring monument. The dis-
order consequent upon the system of Self-help has
disappeared, and the security thereby obtained has
compensated for the additional power given to govern-
ments. Whatever advantage there was in the indivi-
dual being himself conscious of his Right and resolved
168 THE NATURE OF POSITIVE LAW. [VIII
to maintain it, ought to be perpetuated in the fact that
such Rights depend now upon the natural conscience,
or at least that they do so whenever Law and Justice,
as I have deﬁned them above, happen to coincide.
We will proceed then to enquire what are the con-
ditions under which Rights exist in this early state of
society before the help of the State has been called in
and Justice has been organised. We have seen that
Rights have their origin in violence outside the clan,
but are nourished on the peace that prevails within
it. They owe their origin to the strength or prowess
of the individual, and may be said to arise by his own
will, but it is essential also that their fairness should
commend them to the assent of the community. There
is, therefore, at present no difference between the will
of the individual and the will of all, and Law and
Sanction are alike unnecessary. We have to notice, in
particular, that the Right is perfectly clear, that it is
enforced by public opinion merely, and that it is
established by the individual himself. But we cannot
go far without discovering that each of these matters
requires special attention. In course of time, as
interests multiply, the Rights are no longer perfectly
clear to the unaided observer, nor can they be clear to
any one without careful examination and study. Hence
arises the science of Jurisprudence, whose business it
is to keep watch over these Rights; to have them so
marked out and deﬁned that they can be at any time
known. In course of time, again, as the clan grows into
the tribe, and the tribe into the nation, the force of
public opinion is no longer able to enforce these Rights,
VIII] THE PROTECTION OF PRIVATE RIGHTS. 169
and we must have some central power which shall act
with a force and precision that public opinion lacks ;
hence arises the necessity for a State Sanction. Finally,
it becomes impossible for each individual to be himself
the author of his own Rights. The advantages which
form the subject-matter of Rights no longer belong
entirely to one person, but must be duly apportioned
between many. Thus a creation of Rights, or a funda-
mental change in them, must at times be effected by a
central decree. Hence the necessity for a legislative
power which shall make, as times alter, suitable changes
in the distribution of Rights.
Inasmuch, then, as in those early times the indivi-
dual relied for protection upon the fairness of his
claim and the sympathy of the rest of the com-
munity, it seemed to be realised very quickly that for
this system to work at all the claims must be perfectly
certain. To this idea we may ascribe the introduction
of the witnesses who play so prominent a part in early
legal ceremonies. It is, indeed, dilﬁcult to separate
precisely the different objects which they served, for
it cannot be doubted that it was their business not
only to ascertain the existence of. the Right, but also to
help in enforcing it. The establishment and enforce-
ment of Rights. are, then, at ﬁrst in the hands of the
same persons, and these the friends of the claimant.
It is, however, impossible to understand how this
system could work effectually without realising clearly
the nature of the relations existing between the
members of a gens, and this, in its turn, is intimately
connected with that direct enforcement of rules set by
170 THE NATURE OF PosITIvE LAW. [vm
public opinion, which was so conspicuous a feature in
early Roman society.
Such an enforcement is, indeed, quiteremoved
from the ideas of the present day, because we are so
much further removed than the early Romans from
the inﬂuence of the family principle. We have seen
the family growing into a clan, and the clan into a
tribe. At the same time that the family thus
increases in size, the bonds of kinship which bind its
members together come to have less and less weight,
and this process goes on very rapidly when the tribe
has settled down upon the land. The early Romans,
however, never allowed the ties which bound together
the . members of the same clan quite to pass away;
indeed the gens, like the family, formed an important
factor in Roman life. We do not exactly know how
the gens governed itself, for although we hear of a
princejos gentis he seems to have no patria potestas
over the other members. Probably the gens, like the
Roman State itself, was managed on democratic
principles, and the heads of the families were co—
ordinate one _with another in power. Standing
between the family and the State it shared in the
nature of each. The bond which kept the members
together was relationship, as in the family : the prin-
ciple upon which they managed their affairs was that
of free consent, as in the State. Thus the gens may
be described as “ a family with a political character,
and as a political union with a family character.” 1
It was this fact that prevented the original freedom
1 Ihering, Der Geist des Ro'mischen Rechts, i. 184.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 171
of the Roman from degenerating into licentiousness,
and made it compatible with the existence of society.
But though the constitution of the gens imposed
restraints on its members, these were not left without
adequate compensation. The individual obtained all
the assistance that was necessary for his existence in
a primitive and rude state of society. The gens took
up his quarrels and avenged injuries done to him.
The gens assisted him in bearing any special contri-
bution that might be levied on him. If he died
leaving his children unprotected, the duty of looking
after them rested ultimately upon the gens. In this
was involved the requirement that all its members
should watch the conduct of the appointed guardian,
and if necessary bring compulsion, legal or otherwise,
to bear upon him. It seems to be due to this, indeed,
that in later times, when the inﬂuence of the gens had
decayed and many ideas originating there had been
extended to society at large, it was permitted to any
one to bring an action against a guardian although
he himself had no interest in the matter. In other
words, the “actio tutoris suspecti ” was an “actio popu-
laris.” But while all these advantages accrued from
union with a gens, the individual was subjected to
restraints to which was due in a large measure the
long continuance of the position and virtues of the
patrician families. Thus it was early realised that
the aristocracy, to maintain their power, must main-
tain also their wealth. It is pointed out in Early
Institutions} that among the ancient Irish wealth was
1 P. 135.
172 1 THE NATURE OF POSITIVE LAW. [VIII
a means of attaining to nobility. The Romans, on
the other hand, resolved to retain nobility by retaining
wealth. Hence the severity with which they looked
upon the prodigus, the patery‘lamilias who was wast-
ing his inheritance. This salutary principle, indeed,
was adopted into the general practice of Roman law,
and a guardian was appointed for the spendthrift just
as though he were a lunatic. But the gens exercised
an oversight not only over property, but over the
conduct of its members generally, and in this manner
the absolute power which a father had over his
dependants was restrained from tyrannical exercise.
Thus the Roman, fully recognising as he did the prin-
ciple of individual liberty, saw nevertheless that the
right to it was only co-extensive with the ability to
use it properly, and hence the vicious and dissolute
found themselves hedged in by restrictions on all
sides.
The practical instinct of the Romans had from the begin—
ning recognised that freedom to be a power must submit to
limitations, and the wild spirit from which sprang the principle
of the subjective will, saw nothing objectionable when in practice
it was subjected to limitations which even to our weak sense
of individualism seem to bear insufferable marks of paternal
government.1
At a later time, this general oversight was kept
up in various ways. As the union of the gentes was
relaxed, part of it fell under the sway of Religion, and
part under that of Law. But we must note that its
distinctive feature was maintained in the power of
1 Ihering, Der Geist des Ro‘mischen Rechts, i. 195. It is from this
work that the substance of the above remarks has been taken.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 173
the censors. These ofﬁcers were at ﬁrst appointed to
make up registers for purposes of taxation, but in
course of time the power which they thus acquired
made it easy to assume some at least of the old
gentile authority, and thus was perpetuated for a
time that tangible sway of public opinion which had
been so powerful among the early Romans.
So far I have tried to show how Justice was sub-
stantially obtained without the assistance of State
force. This depends upon the presumed absence of
violence and fraud which is at ﬁrst found within the
clan, and it seems to be this fact which makes the
establishment of Rights, if not possible, at least easy
and permanent. Although so much stress has been
laid on the necessity of Force as a constituent element
in Law, yet it is possible that this is an incorrect
view of the matter. Force, as Savigny says, is the
physio of Law, not its proper sustenance, and it is
very doubtful whether Law could ever have been reared
and brought to maturity if its only food had been the
physio which so many prescribe for it. We may at
any rate be conﬁdent that such was not the case with
the Roman Law. For its proper growth Law requires , .
a sphere of peace, not of strife, and, in the normal
state, its ultimate support is the approval of all, not
the power of a Sovereign. Although then, as we
have seen, Rights arose in violence between tribe and
tribe, yet within the circle of the tribe itself they had
a quiet haven where they might obtain some degree
of strength and stability before the sure disease of
all Law began to attack them, and the appropriate
174 THE NATURE OF POSITIVE LAW. [VIII
remedies had to be devised. I have given reasons
for thinking that the original foundation of the Right
of property commended itself to the approval of the
clansmen. Now Hooker remarks that “ the most certain
token of evident goodness is, if the general persuasion
of all men do so account it.” 1 In this case the token
seems to have been present in the establishment of
the Right of property. Herein, then, lay its original
defence. The warrior who had captured the slave in
war was doubtless prepared to defend his acquisition if
necessary. But we can hardly doubt that at ﬁrst this
necessity did not arise. In no other way, I imagine,
can we account for the early rise of that respect which
the Romans paid to Law. The natural community
of interests had commended itself to the untutored
instinct of man. When this began to be broken up
and separate interests arose in the shape of private
property, these too commended themselves to the
approval of all. They bore in themselves the mark of
“ evident goodness.” While, then, they took their rise
in the personal superiority of the individual, they were
nourished on the common consent of the community.
But though it is a tenable opinion that Rights
had their origin in this manner, we soon have to con-
sider how more effectual means may be taken for their
protection. We shall see immediately how the very
nature of Rights gave rise to the occasional need for
arbitration between contending parties, but it will be
well for us to remember, too, that there was arising a
power which, when necessary, could stand behind the
1 Ecclesiastical Polity, i. 8, 3.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 175
arbitrator and enforce his decision. This power was
originally of two kinds, secular and religious, and it
ﬁrst makes its appearance in the punishment of crimes.
It is a characteristic feature of the Romans, that in the
very earliest times we already have the distinction
between jus and fas, between Law human and divine.
Indeed, it seems as though men, the further they got
to the West, were better able to realise this distinc-
tion, and its recognition seems to have taken place at
an earlier time amongthe Romans than among the
Greeks. In the Greek clan the position of the chief
was maintained to a later date than among the Romans;
he certainly had judicial powers of an extensive kind,
and there seems to have been an impression that his
decisions were directly inspired by the gods.1
But we have no trace of the time when the Romans
had not made this distinction between divine and
human Law, and it is curious that the manner in
which they regarded human Law is reﬂected in the
word they used for it. The derivation of fas is uncer-
tain; it is either that which shines (equivalent to
gbcioq, light), or that which is spoken. In either case
it may be regarded as Law emanating directly from
a Superior Being. But the ﬁrst conception of jus is
different. The idea here is that of binding. It would
seem as though the early Romans, though they found
themselves encircled by a host ‘of customary observ~=
ances, yet perceived that many of these were of a
different nature to the laws they ascribed to the gods.
To murder one of the same clan would be nefas, against
1 Ancient Law, chap. i.
176 THE NATURE OF POSITIVE LAW. [vIII
the divine commands. But the customary rule, in
accordance with which each clansman carried on his
tillage, in a manner observed by all, was simply jus,
that is, something binding him. The divine law was
fas, because the gods had so expressed their will; the
human custom was jus, because nothing was known
of it save that it was binding. To each of these great
sources of Law there corresponded an appropriate
Sanction, the one inﬂicted by the priests, the other by
secular officers.
It is not unreasonable to suppose that a great
increase in crimes of violence took place upon the
union of the original Roman tribes. With regard to
the early measures that were used to check this I
need not say much here. It will be sufficient to refer
to the last chapter of Ancient Law, where the sub-
ject is treated with much clearness. It is there re-
marked that the idea of crime, as affecting the whole
people, and therefore liable to be punished by the
State as representing the whole people, is one of slow
growth. And, indeed, upon the view of the early
Roman community that we are taking, this is natural,
for there was no such thing as a State in existence.
There were a number of co-ordinate independent fami—
lies, and in some matters the administration was
entrusted to a Council and a Chief, but that was all.
Hence crimes were at ﬁrst dealt with either as sins
against the gods, to be punished by proper expiation,
or as wrongs against the individual, to be punished
by private revenge. But although there was no such
organisation at Rome as corresponds to our modern
VIII] THE PROTECTION OF PRIVATE RIGHTS. 177
idea of a State, yet there was government of a kind,
and this was powerfully inﬂuenced by the state of war
in which the Romans continually lived. From the
existence of insubordination in the army it was easy
to pass to rebellion against the State, and this seems
to have been one of the ﬁrst crimes, if not actually the
ﬁrst, which was dealt with publicly. It was a matter,
indeed, of self-defence. As the individual warded off
assault, so the State warded off rebellion. Hence we
may explain the very early mention of the crime of
treason, Zoercluellio, and of the two commissioners who
acted as the King’s deputies in such matters, the
duo oiri percluellionis. As this crime arose with
the State, so the State naturally took charge of its
punishment. The exact manner in which it invaded
the spheres of priestly judgment on the one side and
private revenge on the other is not exactly known.
We ﬁnd at an early date the qucestores pariciolii, or
“ trackers of foul murder,” and the criminal jurisdic-
tion of the State courts made gradual progress. The
system of private revenge did not, however, entirely lose
its ground. In cases of aggravated guilt its justice was
still recognised. The husband might slay the adulterer
taken in the act ; the owner might slay the thief who
was caught stealing by night. So, too, the Law itself
showssigns of having merely replaced private revenge.
It is indeed, in its ﬁrst stages, administered by per-
sons to whom private revenge is well known, and to
whom in extreme cases it still appears quite natural.
It is not surprising, therefore, that it adjusts its
punishments upon the same principle. Thus the
‘ N
178 THE NATURE OF POSITIVE LAW. [VIII
penalty is proportioned not to the guilt of the wrong-'
door, but to the state of wrath in which the injured
person would be at the moment of punishment, if this
were in his own hands instead of in the power of the
State. Hence the difference between the fur mani-
festus and the fur nec manifestus; the former may
be slain, he is taken in the act; the latter need only
pay double, the wrath of the injured person has had
time to cool.
Nor, on the other hand, were the advantages of
the priestly jurisdiction forfeited. Matters which had
formerly been left to the priest alone now came under
the cognisance of the State, but there was still abun-
dant scope for divine penalties, and new sins were
from time to time added to the list. Thus the Divine
Law penetrated where the Human Law either could
not or would not extend. The Romans saw the dan—
ger of the modern doctrine that the Sovereign is all-
powerful, and where they feared that public opinion
could not reach him they called religion to their aid.
Thus it was a sin, nefas, for the Dictator to stay more
than six months in ofﬁce. So, too, the laws which
protected the tribunes of the people were placed under
divine protection. Into the family, again, the law
refused to enter ; not so religion.

If a husband sold his wife, or a father sold his married son;
if a child struck the father, or a daughter-in-law her father-in-
law ; if a patron violated his engagement to keep faith with his
guest or dependant, the civil law had no penalty for such out-
rages, but the burden of the curse of the gods lay thenceforth on
the head of the offender.1
1 Mommsen, i. 184.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 179
We have thus come to the end of a digression
which was intended to show how the union of the
gens had, in the ﬁrst place, a strong inﬂuence in the
maintenance of Rights, and how a power was growing
up both in secular and in priestly hands, which, when
necessary, would be ready to come to their assistance.
We may now return to the point from which we started,
the establishment and maintenance of Rights by mem-
bers of a gens.
The support that these were bound to give to the
interested party was probably at ﬁrst very effectual.
Disorder and violation of Rights would exist chieﬂy
between members of different gentes. Hence we ﬁnd
that relationship was no objection in witnesses. They
must not, indeed, be women, in case force should be-
come necessary. But the closer the relationship the
more natural and hearty is the support they give to
their kinsman. It is easy to understand how the duty
of giving assistance would attach to the witnesses. It is
simply an instance of the natural desire to. “ see a friend
through” with a matter in which help has already been
given to him. The establishment of a new Right is a
matter of some importance to an early Roman; that
there may be no mistake about it he calls in various
friends as witnesses; and if, afterwards, he should have
any difficulty in asserting his claims, it is to these
same friends that he looks in the ﬁrst instance to
assist him. We must not indeed imagine that such a
course would lead to general struggles between gens
and gens. If there was no doubt about the claim his
fellow-clansmen would shrink from supporting the
180 . THE NATURE OF POSITIVE LAW. [VIII
defendant, just as the claimant, on the other hand,
would receive from his friends sympathy or actual help.
‘It may not be improper to assume that the long acqui-
escence in customary law had developed in the Romans
a natural respect for order, and this would prevent
a whole gens from supporting an unjust demand or
resisting a fair one. This then is the ﬁrst step to the
organisation of Justice. The two requisites in the
maintenance of all Rights are, that the Right should
be known, and that there should be power to enforce
it. The ﬁrst requisite is supplied by the presence of
the witnesses; the second by the readiness of the
witnesses to lend their actual assistance. This assist-
ance, however, is radically different from State-help.
It is not independent and certain like this, but still
depends largely upon the support of public opinion.
It is this support, however, which prevents the col-
lapse of the whole system amid bloodshed and an-
archy.
In this condition of things we must search for the
beginning of a more formal system of Justice. Such
an attempt is full of interest, and owing to the re-
searches of recent J urists may be entered upon with
some hope of success. I have already tried to show
how Rights were originally established, and we are
acquainted with the most ancient procedure by which
they were enforced. From these sources of informa-
tion I shall try to deduce the origin and develop-
ment of State Justice. It has been remarked that
at the present time J urists are concerned more with
Substantive than with Adjective Law; in other words,
VIII] THE PROTECTION OF PRIVATE RIGHTS. 181
the Rights themselves are deemed of more importance
and worthy of more careful investigation than the
procedure by which they are enforced. In the early
stages of Law, however, the contrary is the case.
The Action (Actio Legis) is strictly deﬁned, and is
made the pivot upon which the whole Law rests.
From a knowledge of the Actions they can bring, men
may discover what are the Rights they possess. This
idea, indeed, lasts for a long time, and appears with
almost unabated vigour in so mature a system of Law
as that contained in the Digest. The Title which is
there devoted to the action for reclaiming property
(vi. 1, Rei Vinolicatio) contains very little that has to
do with the action itself, but the compilers thought
that this was the proper place to introduce a multi-
tude of rules which should have found their place in
a Title on Ownership. In the same way many of the
most important Rights of property are credited with
no independent existence at all, but have to be
searched for in the Book on Interdicts.
But this defect, according to the view I am here
suggesting, is not present in the very infancy of Law.
The taint is not original, but is acquired through con-
tact with the corrupting inﬂuences of real life. Men’s
thoughts were ﬁrst ﬁxed upon their individual privi-
leges or Rights, and it was to protect these that Civil
Procedure was gradually developed. But in course of
time the entrusting of justice to government brought
a great evil with it. The practice of government no
longer depended on the existence of Rights; Rights
were dethroned from their proper eminence and made
182 THE NATURE OF POSITIVE LAW. [VIII
to be dependent on the practice of government. We
must therefore go back beyond this unhappy state of
Law, the perpetuation of which has so often made
justice an object of ridicule. Instead of beginning
with the Actions of Law and discovering Rights from
them, we must commence with Rights and see how
each came to be enforced by its appropriate action.
We need not, however, go back to those very remote
times when all Rights arose by capture in war. We
are now at a later stage. Land has become the sub-
ject of separate property. Its produce is taken for
his own sole use by the owner. This and all other
things pass from hand to hand. The practice of
borrowing has also begun, and men have need of each
other’s services. The matter, then, upon which dis-
putes can arise are matters of ownership, matters
of debt, and matters of obligation. I separate debt
from obligation, for reasons which are sufficiently ap-
parent from the sketch of their origin given above.
Now disputes as to ownership may be expected to
arise when the thing in question has changed hands
by theft or other fraudulent means, by conveyance inter
vivos, or by devolution upon death. The ﬁrst case is
rather outside our present subject. It constitutes a
direct violation of an existing Right of property, and
is regarded by the owner as a matter calling not so
much for self-help as for revenge. The extraordinary
respect attached to property by the Romans is partly
explained by the prominence which its possession gave
to the individual. The foundation of private property
was the commencement of individual importance.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 183
Hence wealth was bound up with the person of the
owner, and a violation of the Right of property was a
serious offence. The thief taken by night might be
put to death ; and in all cases the thief taken in the
act was awarded to the injured party as his slave.
But this does not immediately lead to an action.
According to the principle above laid down, the cul-
prit was abandoned by the members of his own gens
and execution proceeded against him as a matter of
course. This process, then, though it gave rise to the
later actiofurti, was not thought worthy of founding
an action in the older system. For this we must rather
look to those cases where a real doubt as to the Rights
in question could arise. Sir Henry Maine has ex-
plained very clearly the symbolic meaning of the Actio
Legis Sacramento,ll and it is perhaps not inconsistent
with his views to regard it as the enforcement by the
State in a particular case of that which was already
done by all reasonable men in other cases; private
arbitration, that is, was the precursor of organised
Justice. The ﬁrst business of the State was merely
to compel contending parties to refer the matter to
arbitration; it was only at a later date that it took
the whole affair into its own hands, itself appointed
the arbitrator, and laid down the law. This view,
perhaps, derives its plausibility from the supposition
that disputes as to property must already have be-
come common while the bonds of kinship forbade an
actual ﬁght between the rival claimants. In opposi-
tion to this the well-known practice of wager of
1 Ancient Law, p. 376.
184 THE NATURE OF POSITIVE LAW. [VIII
battle‘ among the Teutonic tribes may be urged, but
the different social habits and character of the Romans
make it quite unnecessary to suppose them to have
ever had recourse to such a proceeding. It may well
be doubted whether the Romans ever loved ﬁghting
for its own sake. I have already referred to Momm-
sen’s conjecture that the founding of Rome was
due to commercial considerations. The character of
the Romans was, indeed, a strange mixture of different
elements; notwithstanding their strong sense of in-
dividuality and love of personal freedom, they were
inﬂuenced no less by an intense love of the common-
wealth and a desire to procure its prosperity. Their
ﬁrst struggles were due to no warlike spirit, but were
entered into to preserve the existence of the city.
The success which ultimately crowned their arms may
have left a warlike stamp upon their character, but in
after ages this seems to have been but a means to an
end. We can thus see that there was a fundamental
distinction between the early Romans and the Teutonic
tribes. It is not justiﬁable to transfer to them the war-
like practices of the latter, so far as they led to combats
between members of the same tribe. The Roman was
ready enough to sacriﬁce himself for the common
good; but when war was over his business lay with
his farm, not with ﬁghting his neighbours. The de-
velopment of the tournament as a pastime in the
North seems to favour the same view. There was
nothing corresponding to this among the Romans, and
the gladiatorial games of a later age rather ministered
to a passion for excitement and a lust of cruelty than
vm] THE PROTECTION OF PRIVATE RIGHTS. 185
testiﬁed to a native love of battle. These considera-
tions account for the fact that we have no trace
of such an institution as wager of battle existing
among the Romans, and we may well assume that
decision by arbitration was with them the beginning
of judicial investigation. It would, moreover, be un-
fair to charge against them the reasons which, accord-
ing to Hallam, led to the continuance of the opposite
system in England, viz. “ systematic perjury in wit-
nesses, and want of legal discrimination in judges.”1
In course of time, indeed, as has been frequently
remarked, the feeling against actual ﬁghting for pro-
perty died away, and it was this that ﬁnally compelled
the intervention of the State, an intervention which
was perpetuated in the manner sketched by Sir Henry
Maine. But it must be remembered that, so far as we
know, the Praetor never himself decided the matter.
All that he did was to compel the contending parties
to refer the matter to arbitration. This, then, would
seem to have been the original practice, and the
Praetor merely made it compulsory in every case.
We have mentioned above two cases as affording
occasion for disputes as to property, when there has
been a conveyance inter eieos, and when there has
been a devolution by death. Each of them is useful
for illustrating our subject. If there has been a
mancipation simply, and the new owner loses pos-
session, there is no difﬁculty. He goes with ‘his wit-
nesses to the land, if it is land, or to the place where
the thing is, if it is a movable. The other party has
1 Middle Ages, i. 282.
186 THE NATURE OF POSITIVE LAW. [VIII
no witnesses, and no pretence of title. A restora-
tion takes place as a matter of course, and the affair
leaves no trace on the Law. But suppose that in some
way there has been a mancipation of the same thing
to two different parties. In this case, when the one
goes with his witnesses to claim possession, he is
confronted by the other with his witnesses to resist
the claim. In isolated cases this will lead to a quarrel ;
but, as a rule, the respect of the Roman for order and
property will lead to a reference to arbitration. The
decision of the arbitrator is accepted as ﬁnal, and the
vanquished party yields. The other case which I
have mentioned is of a slightly different character.
Upon the rise of separate property, and before the
notion of a will had been introduced, numerous ques-
tions must have arisen as to the division of property
upon the death of the paterfamilias. An interesting
case of this kind is cited in the records of Jewish Law.1
Soon after the settlement of the Jews in Canaan, after
the assignment of the land to the various tribes, and
then to the various families in the tribes, an owner of
land died leaving two daughters. The question at
once arose whether a devolution of land upon females
should be allowed. The matter was naturally referred
to the decision of the elders of the tribe, and they
pronounced what is called a “ statute of judgment ”
in favour of the daughters. Soon after it was per-
ceived that a difficulty would arise if the daughters
married out of the tribe, for then the land would pass
out of the tribe too.2 Accordingly, the court sat again
1 Numbers xxvii. 1-8. 2 Numbers xxxvi.
VIII] THE PROTECTION OF PRIVATE RIGHTS. 187
and aﬂirmed its former judgment in general, but added
a proviso that the daughters should be married to
husbands from the same tribe. Leaving for the pre-
sent the question of who would be selected as judges
in such a case at Rome, we have in the two instances
that have been given instructive examples of how rules
of law may be supposed to have arisen. The ﬁrst case
raises the very common question of which of two
innocent purchasers is to have the preference, and we
already see the germ of the famous maxim, “ gui
potior est in tempore, potior est injure.” The second
is more akin to direct legislation, and we see how even
this starts originally from the same source as most of
our English Law, viz. a decision upon an actual case.
The reference to an arbitrator, which has been
described above, was perhaps the earliest form of the
Actio Legis Sacramento. Its further development I
shall consider later on. For the present it is sufficient
to have seen how the actual existence of the Right of
property led to the invention of some means for its
maintenance.
It has been shown how debts were incurred by
means of the mancipatio, and how from that fact the
term neacum, which ultimately acquired a general sig-
niﬁcation, was derived. We must consider, then, what
means were adopted in case the debtor failed to fulﬁl
his obligation. As I have shown above, the remedy
was really just the same as in an ordinary mancipation,
viz. a proceeding in rem, the res here being the per-
son of the debtor which was held to be forfeited; but
the whole matter was much more striking than the
188 THE NATURE or POSITIVE LAw. [vm
mere taking possession of property, and it consequently
acquired a position of its own; hence the Manus
I njectio. At ﬁrst such cases would rarely give rise
to doubt. The nexum was entered‘ into in the most
formal manner, the ” witnesses could at any time be
produced, and the debtor was left without the slightest
defence. The Manus I njectio followed as a matter
of course, and to such an extent was the debtor pre-
sumed to be guilty, that even in later times when
justice was organised, he was not himself allowed to
set up a defence. Another might be his vindex and
plead in his behalf; but even this privilege was
hemmed in with restrictions, and the ' vindex who
failed, himself shared the debtor’s guilt, and had to
pay a penalty. It has been said that the fact that
the Romans submitted to the harsh punishment of
debtors, is a striking instance of the sanctity which
they ascribed to property. Perhaps, however, we may
see in it rather a proof of the power possessed by the
rich over the poor. I have already pointed to the
‘gentile organisation of the patricians, and the manner
in which this was employed for keeping wealth in
their families. A patrician, therefore, would rarely be
insolvent ; and if this did happen, it would be the duty
of the members of his gens to come to his assistance.
The severity of the procedure must have fallen, as we
know from history it did fall, on the plebeians ; and it
was rather a mark of patrician wealth and power than
of general reverence for property.
Some difﬁculty has been caused by the fact that
Gaius describes this process as a Legis Actio, while, so
VIII] THE PROTECTION OF PRIVATE RIGHTS. 189
far as we have at present traced it, it is merely a form
of Self-help without any reference at all to an action
at law. The point is noticed in Early Institutions,1 and
is there explained by a consideration of the original
meaning of the term. In the phrase Legis Actio the
word Actio has not yet acquired its modern meaning
as a process carried out under the supervision of a
judge, but has the more general meaning of setting
the law in any way in motion. Hence the Manus
Injectio, like distress of all kinds, may be described
by this term. The explanation given by Ihering is
somewhat different.2 At the beginning the Manus
Injectio was such as I have described it. But in
course of time, as debts multiplied and became less
certain, it was necessary to bring this, like other
such matters, under State control. Hence arose the
necessity for the creditor to take the debtor before the
Praetor before carrying him off to his own house. Now,
too, it was possible for a question as to the legality of
the arrest to be raised by means of a tinder. In this
case a regular action at law followed, and the Praetor
appointed a juclete before whom it was taken. Thus
the old Manus Injectio, which was merely a summary
execution, could in certain cases lead to an action
proper to which it gave its name.
We must also refer to another method by which
satisfaction was obtained, the Pignoris Capio. This
seems to have been always conﬁned to very special
cases. These are said by Gaius to be introduced,
some by custom, others by statute. To custom he
1 P. 253. 2 Der Geist cles Ro'mischen Rechts, i. 154.
190 THE NATURE OF POSITIVE LAW. [VIII
refers the right which a soldier had to seize goods of
the paymaster by this process ; and to statute the
claim to enforce in this 1 way sundry payments con-
nected with religious rites; It must be noticed, how-
ever, that the statute in question is a Law of the
Twelve Tables, and probably only settled previous
custom. Ihering supposes that this became a proper
action in the same way as the Manus I njectio, when-
ever a question was raised as to the legality of the
seizure. To this matter I shall return later on.
Ix] THE JURISDICTION OF THE PONTIFFS. 191
CHAPTER IX.
THE JURIsDIcTIoN or THE PONTIFFS.
WE have still to consider the Rights which arose from
obligations other than those of debt. I have already
given reasons for surmising that the original contracts
between man and man resembled in more than one
respect the treaties between tribe and tribe, and indeed
were modelled upon the pattern of these. At a time
when there were no courts of law, moreover, it was
convenient to obtain such sanction for a private con-
tract as was obtained for an inter-tribal one. With
this we may connect the fact that at Rome perjury
was always reckoned as a sin against the gods, and so
came within priestly cognisance. As soon then as a
contract (sponsio) had been made, and had been rati-
ﬁed with an oath, it was easy to secure its fulﬁlment.
At ﬁrst we may imagine that contracts like property
would be respected, and all the more for the fact that
they were protected by divine sanction, while pro-
perty was regarded as a matter purely secular. But
in course of time, when a more real sanction was re—
quired, it was an easy matter to secure this, inas-
much as at Rome divine sanctions were enforced by
the priests. To them, therefore, the injured party
192 THE NATURE OF POSITIVE LAW. [Ix
appealed, and after due enquiry we may suppose that
pressure was brought to bear on the offender to in-
duce him to fulﬁl his contract. This brings us to a
matter which is of great interest but of equal difﬁ-
culty. It is generally assumed that the priests in
ancient Rome had a very great share in the adminis-
tration of justice, but what that share was is not so
easily determined. The materials which we may use
for such an enquiry are of three kinds—the traditions
and history of the Romans themselves, the knowledge
which we possess of other peoples in a similar condi-
tion of development, and the traces which have been
left on Law and Judicial Procedure. I propose to
bestow some attention on each of these sources in
order to obtain reasons for forming an opinion on the
question before us.
In the ﬁrst place there is no doubt that tradition
pointed in this direction. The best record of this
exists in the well-known story of On. Flavius.
For many centuries the Civil Law had been hidden away
among the rites and ceremonies of the immortal gods, and was
known to the pontiﬁces alone. But when Cn. Flavius, a freedman’s
son and a scribe, to the great indignation of the patricians had
been made Curule Edile, he not only published the Civil Law,
but set up in the forum notices of the days proper for legal
business.1
In the next place we may allude to the history of
spiritual jurisdiction in England, but it must be
premised that the cases are not altogether parallel.
Spiritual jurisdiction existed in England after the
1 Valerius Maximus, ii. 5, 2; see also Livy, ix. 46; Cicero, De
Oratore, i. 43 ; Dionysius, ii. 73.
IX] THE JURISDICTION OF THE PONTIFFS. 193
/
Norman conquest, and, indeed, at that time advanced
its boldest claims; but here the temporal power
existed with it side by side. At Rome, we can hardly
suppose this to have been the case. According to
Roman tradition, indeed, the State was ﬁrst ﬁrmly
founded, and then Religion was added at a later
period. In other words, Romulus was placed before
Numa. But in those early times, when the people
were just emerging from a condition in which Religion
has overwhelming power, and human laws are only
beginning to be separated from divine laws, there is no
doubt that the order was reversed. At a time when
the State was still a loose aggregate of clans, and the
chief bond between them was their common obedience
to one general in times of war, the priests probably
attained a power which is to be rather deduced from
that of the Spiritual Courts in England than compared
with it. If the latter attained to such inﬂuence in
spite of a ﬁrmly established temporal power, how
much greater must have been that of the former who
had no regular secular jurisdiction to contend against ?
It must be remembered, too, that there was never such
jealousy between the Church and the State in Rome
as there was in England. Spiritual supremacy was,
indeed, an outcome of the Roman Empire, but in
the beginning of Rome it had, as such, no existence.
Rather we may say, that a separation between the
spiritual and temporal powers had not been thought
of. Nowhere more than at Rome was the whole
national, as well as the whole individual life encircled
and penetrated by religion. To such an extent,
0
194 THE NATURE OF POSITIVE LAW. [IX
indeed, was this the case, that the Roman never
dreamed that holy offices were to be deputed to a
particular class. The paterfamilias offered the family
sacriﬁces, as the King offered those on behalf of the
people. The priest’s business was merely technical.
The most important duty in man’s life was to
propitiate the gods. For this many rules grew up,
rules too numerous for ordinary men to know. Hence
the necessity for a priest in the very earliest times of
Rome. Long before separation of interests had led
to the rise of the Civil Law, the separation of the
people from the gods had led to the rise of Ceremonial
Law. The course of events after that is plain. There
is at ﬁrst no distinction between the professions. The
man with technical training is divided from the man
without it, but the former is expected to do everything
in which special knowledge is needed. Exactly, then,
as at a later date the arts found their home in the
monastery, so in early Rome engineering skill was
found in the college of pontiffs, and from their duty
of keeping in repair the wooden bridge that spanned
the Tiber, their name is supposed to have been taken.
In the same manner, again, as ecclesiastics found their
way into many departments of Law in mediaeval
Europe, so upon the rise of Civil Law in Rome it fell
naturally under the care of the priests. When in
England the contest between the spiritual and tem-
poral powers had reached its height, it was found
necessary to end the conﬂict by making the Church
deﬁnitely subservient to the State. It was impossible,
however, to get over the anomaly due to Christianity,
IX] THE JURISDICTION OF THE PONTIFFS.
195
that the Head of the Church could exercise no religious
function. In early Rome, as I have said, it was
different. The State and the Church were absolutely
one. The State ofﬁcers represented the people before
the gods, and the business of the priest was merely to
give advice as to the proper conduct of ceremonies.
From all this we see that we may suppose the pontiﬁces
to have acquired greater authority than the spiritual
courts did in England. They had their origin before
the temporal courts were regularly established, and
they could add judicial duties to their office without
exciting popular suspicion. If, then, we consider the
extent to which these Courts acquired jurisdiction
in England, we shall be in a position to realise the
, state of things in early Rome.
Now in‘the former country this jurisdiction took two
directions ; it attempted to check the sins of men and
to manage their temporal affairs. The former we may
call their criminal, and the latter their civil jurisdic-
tion. In Saxon times there was no proper separation
of the temporal and spiritual powers. The Bishop sat
side by side with the Earl in the county court. After
the Conquest, however, this system came to an end.
By a charter of William I. the two jurisdictions were
separated, and from this time is dated the rise of the
spiritual courts. A sketch of their criminal jurisdic-
tion has been recently given by Mr. Justice Stephen
in his History of the Criminal Law (ii. 399 et segg.),
and from that source the following particulars are
taken. The crimes with which the spiritual courts
dealt were of course connected directly or indirectly
\l
196 THE NATURE OF POSITIVE LAW. [IX
with religion. Crimes connected directly with religion
are those which consist in opposition to its doctrines,
or non-observance or other violation of its ceremonies.
Of this nature are heresy and neglect of religious rites.
These, of course, fell within spiritual jurisdiction. All
crimes, again, are connected indirectly with religion,
for an offence against the State is almost necessarily
an offence against Divine Law also. But there are
certain grave offences, not so much disturbing public
order and so calling immediately for State interference,
as rather by their immorality cutting at the very
foundation of society, and thus suitable for spiritual cen-
sure. Conspicuous among these are those which arise
out of the relations between the sexes. Hence offences
not directly connected with religion, which come under
spiritual jurisdiction, may be divided into those which
do not and those which do affect these relations. The
ﬁrst class contains offences against truth and honour;
whether the party be bound by an oath to tell the
truth or to observe a contract, in which case it is
perjury; or whether he only violates that honourable
conﬁdence which should exist between man and man,
as in breach of faith. These offences are chieﬂy im-
portant for the inﬂuence they have on temporal matters,
and I shall refer to them again further on. The other
class included all the offences of the nature described.
“ Every form of incontinence, whether committed
by clergy or laity, and whether or not it involved
adultery, was habitually censured, the parties being
cited, put upon their oath to answer the questions
proposed to them, and adjudged to penance of various
III] THE JURISDICTION OF THE PONTIFFS. 197
kinds” (ii. 411). It is to be noted, however, that no
direct power of compulsion was given to the eccle-
siastical courts. Should any such course be necessary,
they must hand over the offender to the secular power.
Their own sanction lay in excommunication, which
was of two kinds, the greater and the lesser. “ The
lesser excommunication deprived a man of all the
offices of the Church. The greater cut him off from the
society of all Christians, and both involved a variety
of civil incapacities ” (ii. 412). Amongst these were in-
ability to sue, to give evidence, or to receive a legacy.
If now we turn to the civil jurisdiction of the
spiritual courts, we ﬁnd that here too their power
was considerable. The institutions over which they
naturally acquired control were marriages and wills.
The latter brought with them a general management of
legacies and of the estates of intestates. More interest-
ing, however, for our purpose is the attempt the courts
made to turn their criminal into a civil jurisdiction.
I have said that the former involved perjury and
breach of faith. An attempt was, indeed, made at an
early time to convert questions of property into trials
for perjury, but the ﬁction in this case was too obvious.
Contracts, however, which depend for their fulﬁlment
on the conduct of the parties concerned, could be
treated otherwise, and it is easy to understand that
every complaint of a violation of contract may be
equivalent to a charge of immorality. The result is
at once seen when we have ecclesiastical courts eager
to extend their jurisdiction. Thus we read in Reeves’
History of English Law (i. 1.23) :—
198 I THE NATURE OF POSITIVE LAW. [IX
In the reign of Stephen the clergy began to draw into the
spiritual courts the trial of persons pro loesione ﬁalci, that is, for
breach of faith in civil contracts. By means of this they took
cognisance of many matters of contract which belonged properly
to the temporal court. This was the boldest stretch which that
court ever made to extend its authority, and would in time have
drawn within its jurisdiction most of the transactions of mankind.
Mr. Justice Stephen points out that this was
counteracted by the introduction in the temporal
courts of the action of assumpsit, in addition to the
old action of debt and covenant. He also enumer-
ates various other cases in which the same course
was taken by the spiritual courts, as, “not abiding
by arbitration, not completing a contract of service,
keeping a promise, or restoring a pledge ” (ii. 409).
Such was the jurisdiction, criminal and civil,
which the English spiritual courts either enjoyed or
attempted to enjoy. The similarity which it bears to
that of the Roman courts is very striking, and there,
as we have seen reason to believe, it existed in an
intenser form. We must remember also that the
Roman court was not left solely to excommunication
for its sanction. It could impose ﬁnes and it could
pronounce a man sacer, and this, though in some
respects similar to the modern excommunication, was
far more severe; it is supposed indeed, though not
unanimously, to have rendered the criminal liable to
death at any man’s hands. I have already, in a
former connection, spoken of the criminal jurisdic-
tion of the priests. We may now conﬁne ourselves
to their civil jurisdiction. This was almost precisely
the same as that which has just been described.
IX1 THE JURISDICTION OF THE PONTIFF S. 199
With the Romans marriage was originally a religious
ceremony (confarreatio), and so was subject to regu-
lation by the priests. The sacred rites of every
family were under their care, and thus they kept
watch on all events which might imperil their exist-
ence. Their presence, therefore, was required at an
adoption in its oldest form (arrogatio), and so too at
the making of a will according to the earliest practice.
This, indeed, was at ﬁrst so extraordinary a matter,
the claim to control property after death such a grave
extension of the “ subjective will,” that the presence of
the people was required also (in comitiis calatis). In
this way the people sanctioned the transfer of property,
and the pontiﬁces guarded the sacra of the family.
So far I have employed various proofs to establish
the fact that the pontiﬁces had a large, if not exclu—
sive, control over legal matters. I have quoted the
tradition preserved by Roman historians; I have
showed that the position of these ofﬁcers in a primi-
tive society would lead to such a result ; I have
adduced the course taken by ecclesiastical jurisdiction
in other similar circumstances ; and I have pointed to
the known inﬂuence of the pontiffs on certain legal
institutions. All this makes it easy for us to accept ,
the testimony of Pomponius recorded in the Digest.
In the course of an account of the origin of Law, he
says (D. 1, 2, 2, 6) :—“ The science of interpreting
all these laws as well as the actions necessary for
enforcing them was vested in the college of pontiffs,
and from among these some one was appointed every
year to preside over private matters.”
200 THE NATURE OF POSITIVE LAW. Inc
I shall now return to the method I was previously
pursuing of inferring from the existence of Rights the
origin of their appropriate remedies. We have seen
that’certain Rights of property arose by a mancipation.
In such cases the Right was perfectly deﬁnite, and
there were witnesses who could establish it. If, how-
ever, it was contested, the parties chose an arbitrator
and were bound by his decision. This leads to the
Actio Legis Sacramento. In some cases, again, where
the Right of property does not vest clearly in a single
person, but a division between several has to take
place, there is no question of the support or testimony
of witnesses, and the parties have merely to select an
arbitrator. I shall attempt to show further on that
this practice leads to the Judicis Postulatio. Origin-
ally, too, as we have seen, debts are intimately bound
up with the transfer of property, and hence are
constituted by a mancipatio. In this case there was
as a rule no doubt, and the creditor at once proceeded
to a “ Manus Injectio.” If, however, an objection on
the ground of legality was raised, a vindex might
appear for the debtor, and this gave rise to the action
of the same name. '
We must now hear in mind the attempts made by
the English spiritual courts to get possession of uris-
diction over contracts, on the ground that their
violation involved a breach of faith. The probability
is very great that some similar attempt was made
by the pontiﬁcal court at Rome. The English court
grounded this claim upon its jurisdiction over perjury
and breach of faith. In considering the course taken
1X1 THE JURISDICTION OF THE PONTIFFS. 201
by the Roman court the following passage is interest-
ing, and may supply some useful hints. It occurs in
the course of an account given by Dionysius of the
reign of Numa 75) :—
Numa, seeing that contracts concluded publicly and before witr
nesses, are faithfully kept through respect for the presence of the
witnesses, and that very few violate them, whilst those which are
made without witnesses, and these are by far the largest number,
depend entirely on the good faith of the contracting parties,
thought that here was a matter which specially merited assistance,
and that good faith ought to be held worthy of divine honour.
Thinking then that ﬁdelity in public matters was
the best security for private probity he erected a
temple of Fides Publica.
Thus the scrupulous exactness of the republic in keeping
faith could not fail to pass in course of time into the manners
of individuals.
Hence it was that a simple word came to be as
strong as any witness, and that an oath was sufﬁcient
to decide a law-suit.
We have already seen reason to believe that
contracts were originally modelled upon treaties or
international agreements, and it is natural to suppose
that at ﬁrst they were exceptional things, entered into
with much care, and solemnity. Hence, just as in
mancipations, there would be no doubt as to the exist-
ence of the contract, and public opinion would be
sufficient to enforce its observance. Moreover, though
questions might arise even where a mancipation had
taken place, this would be less likely to be the case
with contracts. At the present time questions as to
202 ~ THE NATURE OF POSITIVE LAW. [IX
contract chieﬂy relate to the existence of a particular
contract, or to the rights of parties in the case of
conﬂicting contracts. But in early times affairs were
too simple to render conﬂicting contracts likely, and
so long as the formalities were observed there was no
doubt about the existence of the contract. Hence
arbitration in matters of contract, whatever form it
might assume, would be of later origin than arbitra-
tion in matters of property. But as these became
more frequent and penetrated more into daily life,
i.e. as they forgot the model upon which they were
formed, some of the formalities doubtless dropped off,
and at length contracts were concluded which de—
pended upon the mere word of the parties. At this
point, too, it was probable that violation of contracts
also became common. The question then arises, What
authority was likely to gain control over them’.Z Of
course it would be possible for one party to refer the
matter to an arbitrator, but this is essentially differ-
ent to a question of property. The other party will re-
fuse to appear, will deny all knowledge of the matter,
and many difficulties will arise. We have, however,
an easy solution, drawn from the circumstances of
the case and from the historic parallels already given.
The pontiﬁcal court may be assumed to be, in
some form or other, already in existence. It under-
took, as we have seen, the punishment of certain
crimes, and had a general religious urisdiction. If
we remember, too, the course that was taken by the
spiritual courts in England, it will hardly be rash
to suppose that the ﬁrst remedy of a person who felt
IXl THE JURISDICTION OF THE PONTIFFS. 203
himself aggrieved by the violation of a contract was
to appeal to the pontiffs. It is not improbable, that
though other formalities had been dropped, the oath
had been retained. It was of almost universal occur-
rence among the Romans, and a curious passage in
conﬁrmation of this occurs in the author quoted
above (Dionysius, i. 41).
Those who Wish to make a ﬁrm and binding compact take
an oath, and make their agreements at the altar of Hercules.
Hence the violation of the contract was perjury,
and this we know to have been an offence within the
cognisance of the spiritual court. We must not lose,
moreover, such assistance as may be afforded by ety-
mology. We have already seen that the original idea
in jus is that of binding, and the connection between
this and jurare is too obvious to be overlooked. The
binding of two parties by a contract was so frequently
accompanied by an oath, that the word for taking an
oath was derived from this association. Where two
parties were to be bound, there was an oath to be looked
for, and hence the meaning of jurare. Now in tracing
the origin of actions, we have surmised that disputes
upon mancipations led to the Act-i0 Legis Sacramento ;
that other disputes upon property led to the Juolicis
Postulatio; and that debts incurred by a mancipation
led to the Manus I njectio. I am now going to hazard
the suggestion, that obligations made on oath, though
they fell at ﬁrst under the criminal jurisdiction of the
spiritual court, led afterwards to the founding of the
Condictio. Another explanation has been recently
given of this action by Sir Henry Maine in Early
204 THE NATURE OF POSITIVE LAW. [IX
Institutions (p. 259); but where so much is neces-
sarily left to surmise, perhaps it may not be pre-
sumptuous to offer another founded upon a general
review of the circumstances.
The points to which I wish to call attention are
the meaning of the deposit in the Legis Actio Sacra-
mento, and the delay of thirty days after making
the deposit in the Condictio. Sir Henry Maine
explains the deposit as being a reward intended for
the arbitrator, and accounts for the delay by supposing
that the dispute has arisen where there can be no
immediate reference to arbitration. It seems to me,
however, that this latter circumstance would be of
almost universal occurrence, and that it is more natural
to ascribe the origin of the sacramentum to the cause
which he assigns for the conolictio. I think, indeed,
that too much weight must not be allowed to the well-
known comparison of the deposit with the rewards for
the judges depicted in one of the pictures upon the
shield of Achilles.1 In the present day, even, there
_ survive traces of an opinion, probably derived from
the Romans, that legal knowledge is superior to the
vulgar desire for reward. When, indeed, law comes
to be a profession, means have to be discovered for
supporting its professors, and the above principle
becomes a mere inconvenient ﬁgment. But in early
times the service rendered by giving an opinion
on law, may be sufficiently rewarded by the honour
done to the arbitrator in choosing him as a man
whose judgment is to be relied on. It seems to
1 Ancient Law, 1). 3'7 7.
IX] THE JURISDICTION OF THE PONTIFFS. 205
me that Sir Henry Maine’s suggestion that a resort’
to immediate violence is prevented by a bet be-
tween the parties, is just as useful to explain the origin
of the deposit in the Legis Actio Sacramento as to ac-
count for the peculiarities of the Condictio. We have,
indeed, still to explain the ultimate destination of the
deposit, and this may give us a clue to the change in
the meaning of the word saeramentum. I have said
that it is probable from what we know of Roman
customs that the forfeited stake did not go to the
arbitrator, and as a matter of fact it went to the public
treasury; as, then, the chief burden which fell upon the
treasury in those times was the expense of the public
sacriﬁces, this was equivalent to devoting the sum at
once to the service of the gods. This will account for
both the original and the subsequent application of the
money. From the fact that the stakes were paid to
the pontiffs,1 Ihering argues that these were originally
the judges, and that the stakes were offered to the
gods as a compensation for the loss of the time of
their priests. The obvious objection to this is that the
pontiffs were not priests in the ordinary sense—that
is, they were not devoted to the service of any particular
god. They were rather servants of the State than
servants of a god ; and although they possessed all the
technical knowledge—religious, scientiﬁc, and legal—of
the time, yet this is no reason for conﬁning the choice
of judges entirely to them. They doubtless acquired
a great power over legal rules, and the ordinary judges
may have resorted to them for opinions, but the
1 Der Geist cles Ro'mischen Rechts, i. 298.
206 THE NATURE OF POSITIVE LAW. [Ix
existence and purpose of the sacramentum can be
explained without supposing that they were actually
engaged in every action. This was by custom devoted
to the service of the State, i.e. given to the Pontiffs to
provide for the public sacriﬁces. Hence the stakes
were deposited with the Pontiffs at a certain place near
the Pons Sublicius, and the one that was forfeited was
appropriated by them for the above object. If this
view of the matter be correct, we ﬁnd the Pontiffs in
contact with civil affairs at two points. When there
was a suit upon a question of property, this was com-
menced by a wager between the parties, and the stakes
were deposited in a sacred place under the care of the
Pontiffs. From this fact the use of the word sacra-
mentum seems to have been derived. Hence it comes
to denote money paid by way of penalty, and it is
deﬁned by Festus as meaning “as guocl points nomine
penditur.” But he also deﬁnes it as denoting “ guocl
jusjurancli sacratione interposita geritur.” The tran-
sition from one meaning to the other will not appear
difficult if we regard the Pontiffs as being also judges
in matters of contract which had been concluded with
an oath. The party who was in default was liable to
a ﬁne, and probably this received the same name as
the sums of money which were forfeited in the Actio
Legis Sacramento. There is, then, no improbability
in imagining that the name of the ﬁne was transferred
to the oath by which the liability to it was incurred.
At any rate, as we know that such a change in meaning
did take place, the course here suggested seems sufﬁ—
ciently plausible to be worth mentioning.
1X1 THE JURISDICTION OF THE PONTIFFS. 207
So far, we have seen Justice organising itself.
The possibility of this depends upon the power which
public opinion still retains and the general desire to
live at peace within the tribe. Some matters, indeed,
there are, which do not well accommodate themselves
to this state of things, and these are undertaken by
the Spiritual Court. To a certain extent such a view,
no doubt, is ideal. Justice of this kind is occasionally
attended by scenes of violence, and obviously misses
its mark, though in this latter point, perhaps, it is
sometimes imitated by Justice of a later date. It is
this violence, however, which ﬁrst brings into pro-
minence the necessity for State interference. It must
not be imagined, indeed, that the State has been idle
hitherto. Although we have supposed it to be ex—
cluded from civil matters, it has been gradually
acquiring a criminal jurisdiction. There is strong
reason for supposing that this was originally merely
an extension of the necessary power possessed by the
general over the army, a power not inherent in the
general himself, but which arose when the imperium
was conferred upon him by the assembled people.
Among the citizens themselves, indeed, the principle
of co-ordination reigned: it was only in the army
that that of subordination was introduced.1 That
the effect of this was very great may be understood,
however, when we remember how thoroughly the
military organisation of the Romans pervaded their
whole life. It was therefore not difficult for the King
to extend that power of punishment which was found
1 Ihering, Der Geist des Ro'mischen Rechts, i. 253.
208 THE NATURE OF POSITIVE LAW’. [IX
necessary in the army to other cases that called for
it in private life; and though this was resented
by the people as an arbitrary exercise of power,
yet the principle was too valuable to be given up.
Hence arose a general criminal jurisdiction with
power of life and death over the offenders; but the
fact that it originated only in the consent of the
people was never forgotten, and the condemned
criminal had a right to have that consent conﬁrmed
in his own case by an appeal to them. It is curious
how the union that binds men together, and makes
them submit to discipline for purposes of warfare, is
taken as the starting-point for organisations of all
kind. \Ve have an example here in the fact that the
control of Justice by the State springs directly from
the army, and Comte, when he was advocating the
organisation of labour, was satisﬁed with the hope
that the old ideas and sentiments which had been
generated by warfare, might repeat themselves in the
altered circumstances of the future. A similar idea,
indeed, though it did not originate, yet tended to the
centralisation of criminal justice in England. The
Norman kings may not unﬁtly be compared rather
to generals than to modern sovereigns, and local juris-
dictions died away as the idea gained currency, that
crimes of violence were not so much injuries to the
individual as violations of the King’s peace.
\Ve are now able to take up the development of
Justice as it appears in the various Legis Actiones.
The system of settling by arbitration disputed claims
to property has long been in force. The increase of
IX] THE JURISDICTION OF THE PONTIFFS. 209
the people, however, and the loosening of the bonds
of kinship, make actual quarrels between individuals
more and more common. To repress these, a power
imitated from the authority of the general over his
soldiers has been introduced, and order is thus main-
tained in the community. Moreover, the develop-
ment of judicial authority takes two directions. Thus
the spiritual power obtained jurisdiction over con-
tracts, because their violation involved a sin against
the gods. The temporal power obtained jurisdiction
over property, because the quarrels that arose about
it involved a disturbance of the public peace. But,
in the latter case, there was no immediate inter-
ference in legal matters. All that the King or
Praetor required was that these contentious parties
should submit their case to an arbitrator, just as all
reasonable people were accustomed to do ; and as they .
were probably too far gone in passion to agree upon
such a one themselves, he proceeded to appoint one
for them. To this person he brieﬂy stated what the
case was, and left him to decide it. We thus seem to
have at the very beginning of State interference the
distinction between jus and juolicium. The State,
indeed, so far means merely power; its legal func-
tions have not been acquired. But we already have
the judicium properly constituted, and it seems to
me probable that in certain matters, those relating to
property and debt, the judges originally were, or at
least might be, laymen. I have already tried to show
the erroneousness of the opinion that the saoramentum
was a reward paid to the gods for the time that their
P
210 THE NATURE or POSITIVE LAW. [1.
priest consumed in the trial. I may also remark
that there is no necessity to suppose an invasion of
the spiritual jurisdiction when these sums of money
were afterwards devoted to secular purposes. At all
times the forfeited stakes went into the public trea-
sury. At ﬁrst, however, this was equivalent to hand-
ing them over to the Pontiff for sacriﬁcial expenses.
Later on, when the public burdens increased, they
went into the treasury really, and only a proper
proportion of them was devoted to that purpose.
We thus have before us a temporal and a spiritual
jurisdiction side by side. Matters of property merely,
and matters of debt when disputed, come before a
lay judge according to forms of procedure known as
Legis Actio Sacramento and Manus Injectio respect-
ively. Matters of contract come before the spiritual
court upon a charge of perjury. The further develop-
ment of the actions seems simple. ' Although contract
fell so easily under the cognisance of the Pontiffs at
ﬁrst, it was not likely to remain there long. It was
an attempt to make such matters depend upon fas,
and it was soon clear to the Romans that they de-
pended properly upon jus. The ﬁrst attempt to secu-
larise contracts may have occurred in connection with
a forced use of the neocum It was for many reasons
inexpedient to incur the chance of being brought up
on a charge of perjury. The accused party might
have good reasons for not fulﬁlling his contract, and
while willing to pay reasonable damages to his oppo-
nent, he might have strong objections to pay con-
tinual ﬁnes to the priests for contumacy. The neaum
IXl THE JURISDICTION OF THE PONTIFFS. 211
had already been used for entering into one kind of
contract—a contract to return money. In this case
the money was actually transferred by the mancipatio.
It may have occurred, then, to people seeking a means
of making a secular contract, that the same thing
could be done, but the transfer of the money omitted
and assumed for convenience to have taken place. In
this way any contract could be made on condition of
the payment of a sum of money as liquidated damages
on non-fulﬁlment. So far the growth of the action has
been natural—unassisted, that is, by actual legislation.
But Gaius gives us the exact laws by which the Con-
olictio was established and extended. It was created
by the Lea: Silia (circ. no. 244), for the recovery of
a certain sum of money, and extended by the Leo:
Calpurnia (circ. no. 234) to the recovery of any
certain thing. It was thus of comparatively late in-
' troduction. We may suppose that the system de-
scribed above had been in force all this time ; for we
know how long the most cumbersome legal forms
may exist before the Legislature touches them. The
authority of the pontiffs over contracts had probably
been diminishing, and the practice of concluding them
by the inconvenient nexum extending. Finally, it
became obvious that the proper course was to retain
the simple method of contract and give for it an
appropriate secular remedy.
The new action was copied closely from the process
in force for an obligation contracted by a nexum. The
stake was still retained, though now made to bear a
ﬁxed ratio—one-third—to the sum in dispute. The
212 THE NATURE OF POSITIVE LAW. [IX
parties, indeed, had not to appear at once before the
Praetor, and then wait for thirty days for a judge to
be appointed. There was no reason for this formality,
connected only with the real actions, to be continued. _
The same interval indeed was observed, but it was
commenced by simple notice to the defendant, and
thirty days after this the parties had to appear before
a Prsetor to receive a juoleoe.
There are still two of the Legis Actiones which
we have to consider, the Judicis Postulatio, and the
Pignoris Capio. I have already surmised that the
former took its origin in cases where there was no
direct contest as to property, but merely a desire
to obtain such an opinion upon its division as should
satisfy the parties concerned. It is, of course,
not improbable that this was done at ﬁrst by the
voluntary selection of an arbiter. But at a later
time, when the authority of the State in legal matters
was becoming conﬁrmed, and all ordinary disputes
were brought in the ﬁrst place before the Preetor, it
was natural to adopt the same course here also. It
must be remembered that the State interference con-
sisted ﬁrst in forcing an arbitrator upon unwilling
disputants; it was extended afterwards to the appoint-
ment of that oﬂicer in all cases. This supposition
gives a satisfactory reason for the name of the action
in question. Neither party asserts that he has as yet
a deﬁnite claim to the thing in dispute. There is
therefore no question of a wager on either side. Nor
is there any contract between the parties of which
the Pontiffs can lay hold. All that they do is to go,
IX] THE JURISDICTION OF THE PONTIFFS. 213
by mutual agreement, before the Praetor, and ask him
to appoint an arbiter to effect an equitable division.
If in such a procedure we can see the Judicis Postu-
latio, we shall have here the origin of the later actions
familite erciscunolce, communi olieidunclo, and ﬁnium
regunclorum. We must not forget, however, the re-
ceived opinion that this action was used in cases of
bilateral contracts,—that it was applied, indeed, wher-
ever there was a necessity to adjust the mutual claims
of both parties. If we remember the original tendency
to confound real and personal actions, this matter will
afford no difficulty. The reference of disputes on
contracts to an arbiter has already become common
through the ﬁctitious use of the neaum. Men are
familiar with the idea of employing in matters of con-
tract an action originally meant for property only.
Consider, then, what must be done if a question of
account has to be settled between a tutor and his
pupil. There has been no neacum here ; therefore the
Legis Actio Sacramento cannot'be employed. There
has been no sponsio, or contract on oath between the
parties ; therefore the Pontiffs cannot interfere. There
is, however, a procedure in use for settling such mat-
ters as to property; and as, indeed, these questions
between the tutor and pupil really concern property
only, nothing seems simpler than for the parties to
appear before the Praetor and demand an arbiter, i.~e.
commence the ‘action known as Juolieis Postulatio.
The essence of this action, then, is the adjustment of
the unsettled relations between the parties. At ﬁrst
it is applied to matters of property pure and simple,
214 THE NATURE OF POSITIVE LAW. [Ix
and then to matters of property as affected by the
mutual obligations of the parties. Its transfer after
this to all matters of bilateral contract appears
natural and easy.
With regard to the Pignoris Capio I feel some
hesitation in speaking, since the question of pledge
has been so fully discussed by Sir Henry Maine in
Early Institutions (chapters ix. and x.), and his
account of distress among Teutonic societies and
“sitting olharna ” among the Hindoos is well known.
It is, however, one of the principles upon which the
whole of the present investigation is founded, that the
Roman legal system may be expected to differ consi-
derably from other systems. Deviations in the course
of anation or of an individual may be due to accidents,
but a development which takes a continuous and
steady direction is based upon permanent causes.
We can hardly account for the wonderful develop-
ment of Roman Law, and its remarkable vitality as a
system, without assuming an original aptitude in legal
matters which has been wanting among other nations.
I have already given reasons for rejecting the idea
that there was ever a spirit of individual combative-
ness among the Romans. A Law and an Imperial
authority that were to take a front rank in the world’s
history may be assumed to have sprung from a love
of order and a power of self-control that existed in the
earliest days of Rome. Modern inquiries show that
in the primitive state, while men are still bound to-
gether in families, union and order is preserved by the
ties of family interest and affection. As the family
IX] THE JURISDICTION OF THE PONTIFFS. 215
increases to a clan, and the clan to a nation, these ties
disappear. The result which then ensued among the
Romans was probably due to an inherent genius for
Law and Order, and hence, perhaps, Order was long
preserved and Law gradually developed without the
interference of the State. When this was at length
necessary Law was already well established, and was
fostered rather than created by State assistance.
Among the Teutonic tribes this development was
wanting. Hence we have those customs of lawless
disorder which the State at length attempts to control,
and which survive to modern times as taking of dis=
tress and wager of battle. But whether these would
ever have been controlled, had they not come into
contact with the Roman Law, may be a matter of
doubt. As to other savage tribes who have remained
ﬁghting out their quarrels to this day, the system is
only stopped, as we see in India, when a Law already
organised steps in and insists that Justice shall be
attained in the proper civilised way.1 In all these
cases, then, the realisation of Justice is due directly or
indirectly to the effect of the Roman Law. That such
effect is universal is, of course, not intended. The
products of one part of the world are found in another
also. Law may be developed in Southern Africa as
well as in Italy. My present contention amounts
simply to this, that the enormous superiority which
Roman Law has displayed over that of all other
Aryan societies, may well be assumed to be due to
certain peculiarities in the Romans themselves, and
1 Early Institutions, 1). 289.
216 THE NATURE OF POSITIVE LAW. [IX
hence we need not credit them with all the disorder
and violence which has attended the growth of Law
elsewhere. The immediate object of these remarks
is to justify a somewhat different treatment of the
Pignoris Capio to that which would naturally follow
from a perusal of Sir Henry Maine’s work. He does
not, it is true, deal with this institution in its Roman
form speciﬁcally, being content with a mere passing
allusion to it. It will be the easier, therefore, to put
upon it in this place a rather different complexion to
that which it wore among the Teutonic and Celtic
societies. The point from which we start is, that at
the earliest period of which we have any knowledge,
this process was extremely limited in its application,
and was only permitted for the purpose of enforcing
payments connected with the service of the gods.
With this we must connect the extreme reverence
with which private property was regarded among the
Romans. It was, indeed, one of their peculiar insti-
tuti-ons, and to them its diffusion over the civilised
world is largely due. We may well imagine, then,
that in this very cradle and home of property prac—
tices would not be permitted, which sprung up easily
where property was looked upon with less respect.
With the Romans, indeed, the connection between
property and the person of the owner was close and
intimate. They were not far removed from the time
when the idea of the foundation of property in the
personal prowess of the individual was prevalent. It
was long, indeed, before the State itself went so far
as to meddle directly, even in the shape of taxation,
1X1 THE JURISDICTION OF THE PONTIFFS. 217
with private property. It would almost seem as
though the person of the owner was less sacred than
his property, and as if the latter could only be reached
through the former. How else can we account for the
fact that while the Manus Injectio was still the
proper remedy in ‘matters of debt, the Pignoris
Capio was so extremely limited in its application’.2
On the other hand, it must be remembered that pro-
perty, as we have seen, was never taken directly under
divine protection, and theft never became a sin like
murder and adultery; but even this is not altogether
true, for the boundary stones of the ﬁelds were conse-
crated, and the removal of them was consequently
an offence against the gods. 2
From all these circumstances I am inclined to
suppose, that the Pignoris C’apio was never prevalent
among the early Romans like the taking of distress
elsewhere. It had too great a resemblance to theft
to be allowed, and though no Divine Law punished
this, yet it cut at the root of the Civil Law. Hence
it was only permitted when the Divine Law itself
needed aid. The idea of distress was present with
the Romans as with others. That in many cases it
was practised there is little doubt. All I am assuming
is, that in ordinary cases it never became so prevalent
as to come under the regulation of the Law, and so to
be incorporated in the Roman procedure. Only in
the one case mentioned above did this happen.
When a man, through a failure in special cases of a
debtor to pay his debt, was unable to offer his proper
tribute to the gods, then by common consent a dis-_
218 THE NATURE OF POSITIVE LAW. [IX
tress upon the goods of the debtor was permitted.
As in the case of the Manus Injectio, it may be sup-
posed that this in later times was reckoned as an
action at law, because it occasionally raised a legal
difficulty which called for decision. In such a case, it
seems reasonable to suppose that the same officers
under whose sanction the process was carried out
would be appealed to for guidance. The Pignoris
Cajoio would thus be originally an action before the
Pontiﬁcal court. But the practice of distress when it
can be carried out in an orderly manner is a valuable
institution. Inasmuch, then, as the Romans were de-
barred by their respect for property from instituting
it directly, they reaped its advantages, perhaps, in
another way. When distress in the above case had
become a regular thing, and it was seen that under the
proper supervision of the spiritual court it led to no
disorder, a ﬁction was introduced by which its opera-
tion was extended. For this surmise, I am indebted to
Mr. Poste in his edition of Gaius (p. 512). The aver-
ment by the plaintiff, that through default of his
debtor he was unable to perform his religious duties,
justiﬁed his distress if the matter should come before
the court. Upon this supposition, the practice which
among other nations originated in disorder, was among
the Romans instituted in a legal manner. It speedily
found favour, for it was a convenience to creditors, and
the Pontiffs were glad of this opportunity of extending
their power. Such an eagerness for jurisdiction does
not suppose a special rivalry between the temporal and
spiritual courts, and in later times it has assumed a
1311 THE JURISDICTION OF THE PONTIFFS. 219
very intense form between co-ordinate temporal courts.
By this means, however, the Pontiffs made a still
further inroad upon the domain of contracts, and we
may see here, perhaps, another reason for the intro-
duction of the C'onclictio. But though in later times
it fell into disuse, its value was too great for it to be
entirely forgotten. Thus there were cases of universal
importance in which sums of money were undoubtedly
due, but where there was no express contract upon
which a Conolictio could be founded. Of this nature
were the claims of the soldier against the paymaster
for arrears of pay, and for money to buy a horse
and fodder for the horse. This, therefore, became by
custom a proper matter for the levying of distress,
and the custom was duly recognised by the Law.
There is some boldness in advancing the above view
of the Pignoris Capio, and it may be difﬁcult to
substantiate it by any arguments more direct than
those I have adduced. The fact, of course, which may
be used against it, and which perhaps will be fatal to
it, is the universal practice of distress as prevailing
elsewhere, It has seemed, however, that the peculiar
circumstances of the Roman people warranted a special
treatment of the matter in their case, and what I
have said on the subject seems to harmonise with
the general principles that I have been maintaining.
We have now completed our survey of the diﬂ’erent
Legis Actiones. It has been marked to a large extent
by assumptions, and some of these may be found to
be untenable, but I have tried to pursue a consistent
method throughout. We have considered the origin
220 THE NATURE OF POSITIVE LAW. [Ix
‘‘ of the different Rights as they sprang up one after
another in ordinary life, understanding by this term
claims to the enjoyment of such advantages as may
be produced by our own use of material things or by
the acts of others. These Rights are originally con-
ﬁned to property, and here they rest upon the per-
sonal prowess or excellence of the individual. This,
however, is exerted over the members of another
tribe. There is, as yet, no competition among those of
the same tribe, and only that which is captured from
an enemy belongs to the capturer. Then ensues a
division of land taken from the enemy, and each man,
though his portion is allotted to him by general consent,
feels, nevertheless, that he holds it as the reward of his
valour. The same idea still prevails when the com-
munal land is divided, though the dependence of Rights
upon the general will is now coming into existence.
Rights, however, spring originally from the subjective
will and personal force of the individual. This, how-
ever, does not imply indiscriminate violence. The
force is directed against outsiders and approves itself
to the conscience of the plunderer and his companions.
Then come Rights of another kind. Men enter into en-
gagements with one another, and thus we have Rights
in personam, which spring not from the power of one
person but from the free consent of two. So far we
have Rights existing in the simplest and in perhaps
an ideal state. They require no regulation, for they
are perfectly deﬁnite. They require no enforcement,
for the approval of the community is their safeguard.
But this state of certainty does not last. Some
IX1 THE JURISDICTION OF THE PONTIFFS. 221
Rights are doubtful in their origin, and a decision
must be given between rival claimants. Others are
transmitted from one to another, and as the Rights
in the new owners depend no longer upon their own
personal excellence, a new criterion has to be dis-
covered. Hence Rights have not been in existence
long before they require regulation, a process, how-
ever, which is at ﬁrst a peaceful one. Rights are still
respected ; all that the parties want is to know what
they are. Hence the rise of the system of arbitration.
A further step is taken when the increase of the tribe
loosens the bonds which have hitherto preserved har-
mony, and Rights no longer meet with general re-
spect for their own sake. Hereupon the State inter-
feres. The system of arbitration is made compulsory,
and the awards of the arbitrators are carried out if
necessary by force. The discipline that is so health-
ful for the army is imported also into civil life.
Hence in this stage of Law, we have the origin, the
regulation, and the enforcement of private Rights.
Of the origin of Rights I have said sufficient. They
rise in the personal excellence of the individual, or in
the free consent of two individuals. Of their regula-
tion I shall speak more at length further on. Upon
their enforcement I have still a few remarks to add.
If we may make use of an ingenious surmise as to the
origin of the ﬁve witnesses in the early form of manci-
pation, we shall see that the Romans grasped at the very
beginning the true nature of State interference.1 The
State cannot limit itself to the mere suppression of
1 Cf. Early Law and Custom, p. 352.
222 THE NATURE OF POSITIVE LAW. [Ix
disorder arising out of quarrels. It not only stops the
quarrel and appoints an arbitrator, but it also enforces
the award of the arbitrator; in other words, it makes
itself a party to the award. 'We are now on the
threshold of the creation of Rights by the State, and
it is important to watch the germs of this process.
Whatever Rights it enforces acquire an importance
and security which were wanting to them before.
Hitherto they have really rested upon the opinion of
a few neighbours; henceforth they are supported by
the concentrated will of the people. But this con-
centrated will has no wish to interfere with private
Rights. In some cases, of course, the individual will
may seem to assert itself too far, as when the idea of
making a testament and governing the disposition of
property after death ﬁrst appears. Then the whole
_ people must watch the matter and see that the general
arrangement is not disturbed, and so the testament
is made publicly in the assembly. But in other cases
the people or the State merely desire that when they
do enforce Rights these shall really be in accordance
with the intentions of private individuals. Now,
hitherto the witnesses at a mancipation have played
a very important part. They have not only preserved
in their minds a record of the ceremony, but, being the
friends of the parties interested, they are expected
also to assist if necessary in the enforcement of the
Right thus created. But this is now all changed. The
State in future is to enforce the Right. What more
ﬁtting, then, than that the State should also witness
the transaction’? It will itself be aware of the exact
IKl THE JURISDICTION OF THE PONTIFFS. 223
intention of the parties, and will do nothing but
scrupulously carry them out. Such is the interpre-
tation that may naturally be put upon the presence
of the ﬁve witnesses in the mancipation, a number
which has been supposed to represent the ﬁve classes
into which the Servian. constitution had divided the
people. In other words, we see that a system of
registration lay at the foundation of interference by
the State. The State had no desire to disturb the
Rights of individuals; but how could these Rights
be known if the people by their representatives
were not informed whenever a change in them took
place? As we have seen, contracts, so far as they
were concluded by the mancipation, fell under the
same rule, and the State refused to enforce any Rights
of whose origin it had not had due notice. That con-
tracts in general did not share the same fate is due
to the fact that, according to the view set forth above,
they did not come under State control till a later
period. Dealt with as they were in the Pontiﬁcal
Court, and treated in their relation to offences against
the gods, there was no such reason for requiring the
presence of witnesses at the time of making them.
We have now come to the end of what may be
called the second stage of legal progress, the stage
which sees the origin of private Rights and the growth
of a State-power to enforce them. In the third stage
we shall see these Rights increasing in number and
complexity, and the consideration of the various
rules which have to be devised to govern them will
introduce us to the different forms of Legislation.
l0
l\')
as.
THE NATURE or POSITIVE LAW. iii
CHAPTER X.
THE REGULATIoN or RIGHTS.
THE question of the regulation of Rights to which we
now turn our attention is of the utmost interest and
importance, and upon the view which we take of it
will rest the position and functions we assign to’ the
science of Jurisprudence. I have used the term
regulation of Rights because this seems to indicate
clearly the original legal operation. As to their crea-
tion there is so far no question. They arise in the
personal prowess of the individual or in the assignment
to him of his share of the common land. When, how-
ever, there is a doubt as to the person in whom apar-
ticular Right when once created shall vest, then there
is a matter for regulation. Now if we go back to the
earliest cases and consider the course adopted by the
original arbitrators, we see at once in what these regu-
lations took their rise. There was only one thing to
be done in the absence so far of all rules. The arbitra-
tor stated what his own sense of justice intimated was
fair. But this sense of justice was merely derived
from his knowledge of what was usually done in simi-
lar cases where no contest arose. In other words, the
earliest decision could be nothing else than a record of
X1 THE REGULATION or RIGHTS. 225
the customary practice in such matters. Now, of the
actual growth of legal contests and the assignment of
their decision to a special class we have little know-
ledge. But a time soon comes when the labour of
giving a distinct judgment on each case is out of all
proportion to the object attained. Every one who has
to do the same thing over and over again, ﬁnds the
immense relief of having some guiding rules to fall
back upon instead of thinking out the matter each
time, and this is all the more necessary when it is
important that his results should have a certain con-
sistency. If, then, we remember that the ofﬁce of
arbitrator would in all likelihood fall repeatedly to
the same individual, we shall see how soon the neces-
sity for legal rules would arise. It is an interesting
question to consider how far this process was assisted
by the existence of the Pontiﬁcal College. I have
already given reasons for believing that they exercised
a very powerful inﬂuence on legal matters, and it is
not improbable that as soon as Law left the stage of
mere common sense and became a technical matter, its
study would fall into their hands. This does not sup-
pose, indeed, that they would have the exclusive prac-
tice of it. The decisions in secular matters which I
have described above were possibly always in the
hands of the laity ; but just as in the present day a
judge takes an opinion from a work of acknowledged
repute, so we may well imagine that the arbitrators
in Rome would be glad to consult the College of Pon-
tiffs when in need of a rule. That this state of things
did not last long we know, for ultimately the Law
Q
226 THE NATURE OF POSITIVE LAW. [12
became a distinct profession, and indeed the most im-
portant one in Rome. But the fact that it existed
originally doubtless gave a great impetus to the
creation of legal rules, and conﬁrmed them in that
rigidity which they so often assumed. It would,
however, be a mistake to suppose that this rigidity
is a quality which attaches to them from the ﬁrst.
We may well suppose that the early arbitrators had a
discretionary power which allowed them to adapt the
rule to the circumstances of each case. The proper
idea, we may say, of a rule of law is that it is an attempt
to sum up current opinion upon a class of cases. The
possibility of constructing these rules, however, de-
pends on two distinct faculties, the faculty of observa-
tion and the faculty of expression.1 Each of these has
its own sphere and its own importance. We continu-
ally act upon rules of which we have no consciousness,
and when we do try to realise them we often seize
upon unimportant matters. Indeed it is often merely
the accident of the violation of a rule that makes us
conscious of its existence; our interest is then aroused,
and we begin to enquire what the rule may be. A
notable instance of this is afforded by grammar.
Language exists and obeys rules more or less ﬁxed
long before grammar is thought of, and most persons
talk with tolerable correctness who are quite ignorant
of any rules. But in course of time it is noticed that
deviations from common practice take place, and then
people set themselves to discover what this common
practice may be, and to express it in rules. Afterwards
1 Ihering, Der Geist ides Ro'mischen Rechts, i. 28.
x] THE REGULATIoN or RIGHTs. 227
the rules have a tendency to ﬁx practice; the lan-
guage loses its vitality, and people do not always
correct themselves by an appeal to their own percep-
tion of what is right, but by reference to a rule.1 The
same process goes on in Law. In its earliest stage every
judgment is based on what we call common sense and
is in accordance with the general sense of justice.
But then comes a judgment in which this is departed
from, and it is followed by an attempt to seize the
points at issue and express them in a rule. This pro-
cess was going on all through the history of Roman
jurisprudence, and was not ﬁnished even then. The
Digest contains a multitude of cases which are decided
with much consistency, but in which the true rule
has never been hit upon. Thus is opened a Wide ﬁeld
for the ingenuity of the moderns, and we are able now
to present a system of legal rules taken from the
Digest which is far in advance of anything attempted
in. the time of Justinian.
An instance of this is found in the well-known
controversy as to the real meaning of the rule that
Possession must be obtained by bodily contact (cor-
pore). Stated thus, it would appear that actual
touch was in every case necessary. This, however,
was seen to be in many cases untrue. Then the
commentators began their work, and said that corpus
must be taken in a wider sense. In early times,
doubtless, it meant actual touch; but as the idea of
Possession gained ground, it was found that sight
would serve the same purpose. Hence, with a gen-
1 Ihering, Der Geist oles Ro'mischen Itechts, i. 29.
228 THE NATURE or POSITIVE LAW. [x
*immediately.
eralisation worthy of some praise but for its absurdity,
it was said. that corpus should include perception by
any of the senses, as though a Roman jurist had
ever dreamt that Possession could be obtained by
hearing or tasting or smelling. It was Savigny who
ﬁrst grasped the true rule when he dismissed all imme-
diate notion of corpus as such, and showed that the
acquisition was founded not upon bodily contact, but
“ upon the physical power of dealing with the subject
”1 He also adds, “ and of excluding any
foreign agency over it ;” but it has been rightly ob-
jected that this is not essential, provided one has
present physical control. Indeed it will rarely be pos-
sible to exclude all foreign agency whatever.Z The
physical contact, then, which the Roman J urists had
required was no essential point in Possession, but
merely an accident. Upon the true principle it be-
comes possible to explain without resorting to ﬁctions
why the Possession of a movable placed in my house is
acquired by me, and why the delivery of a key trans-
fers Possession of the merchandise placed in a ware-
house. This is merely one example selected because
it is well known. For another I may refer to the
elegant series of rules deduced by Pothier for the de-
cision of the question of accession, or of the union of
different possessions in reckoning the time for usu-
caption. Of course the discussion of the correct rule
in a case where the Roman J urists were at variance
is another matter, such as the question whether the
1 Possession, Sir Erskine Perr‘y’s translation, p. 143.
2 Windscheid, Pandelctenrecht, sec. 153, n. .3.
Xl THE REGULATION OF RIGHTS. 229
existence of ajustus titulus in acquisition of Possession
was actually required, or whether a bonaﬁde belief in
its existence would do instead. Even here, however,
by searching more narrowly for the principle involved,
we may be able to show that the disagreement only
arose through a failure on the part of the J urists to
seize it correctly.
But there is a possibility of error not only in the
observation of a rule, but also in the expression of it.
It would often be wrong to suppose that a particular
rule was ever strictly applied by its authors in practice.
When Law is still in its infancy and springs directly
out of custom,the rule is often merely a guiding-post
to the way by which a decision is to be reached. As
I have already remarked, the judge depends not on
the rule alone, but exercises his own judgment at
every point. There are numerous circumstances which
he takes account of, and which are not included in
‘the rule, perhaps, because they are too well known.
The actual rules of Law, then, are defective both in
quantity and in quality. There are rules which the
judges really act upon without ever expressing them
in words: there are rules which express only a part
of the principle applicable to the cases they cover.
From this we see that the complete arrangement of
the Law in rules, is a matter which requires consider-
able talent, and only in the infancy of Law can it be
regarded as an unmixed blessing. There is not at
that time such complexity of Rights that a rigid
adherence to rule is absolutely necessary: they are,
however, sufficiently complicated to make the inven-
230 THE NATURE or rosITIvE LAW. [x
tion of rules of great use, so as to facilitate decisions
upon them. The judge has the rule to guide him on
his way, but if the rule is not true to life he has no
hesitation in'ﬁlling up its defects from his own dis-
cretion. In course of time, however, this free discretion
becomes impossible, and the judge has to keep more
and more to his strict rules.
I must observe again that it is not the actual
judge who makes these rules. I have surmised that
this office , fell at ﬁrst to the College of Pontiffs,
and both the probabilities of the case and all tradi-
tion point in the same way. Such an arrangement
would favour the rapid growth of rules, and would
withdraw them from that actual contact with life
which is so necessary to preserve their freshness.
This would account for the strictness with which they
were ﬁrst applied. Later on a change took place; a
separation in the professions was necessary, and Law
was entrusted to the laity. Although perhaps Roman
Law owed its symmetry and strength to the early
care of the Pontiﬁcal College, yet its vitality and
permanence were due to the wise appreciation of
actual Wants shown by the lay J urists. This, as is
well known, was exhibited in two ways: in the suc-
cessive reforms introduced by the Praetor, and in the
opinions of the J urists. ‘
The mention of the Praetor in this connection
carries us a step further in the history of State Law.
At ﬁrst, as we have ‘seen, he represented merely the
power of the State stepping in‘ to. avert bloodshed;
he compelled the parties to choose an arbitrator,
Xl THE REGULATION OF RIGHTS. 231
while the arbitrator took his law if necessary from
persons specially versed in it, and not improbably
from the College of Pontiffs. This, however, was an
arrangement that could not last long. I have already
given reasons for the early strictness of the Jus Ciuile,
but though it was well adapted for Roman citizens and
for Rights of property created in special ways, yet its
adaptation to the practical affairs of everyday life was
not by any means perfect. In other words, the Praetor
discovered at a very early period that Law and Justice
were severed, and it appeared to him that as he was
the person charged with putting the Law in force,
he might without impropriety attempt to infuse a
modicum of Justice into it. The long duration of
Praetorian legislation and the beneﬁcent effects it pro-
duced amply justiﬁed this procedure. Moreover, the
secularisation of the Law, as we have imagined it,
and the creation of a body of Jurists of distinguished
rank, rendered possible a succession of Praetors emi-
nently ﬁtted for their post. The question of this
legislation has been exhaustively treated by Austin
(ii. 602,) and Sir Henry Maine (Ancient Law, p. 62).
It will be sufficient here, then, to point out how the
creation and regulation of Rights were properly
divided between the Praetor and the Jurists. The
division, indeed, is not perfectly correct, because the
work of the Praetor was nearly over before the work of
the greatest J urists began. We have, however, the
germ of a principle which it is worth while to examine.
I have already pointed out the distinction between
the origin and the regulation of Rights. In the begin-
.232 THE NATURE OF POSITIVE LAW. [x
ning of things this exists with some distinctness, but in
course of time it is not so easy to draw the line. Rights
are now not as a rule newly created, but the state in P
which they actually exist often offends the general sense
of Justice. Hence it becomes necessary that a change
should be made, and Rights are boldly taken away
from one class of persons and conferred upon another.
Thus to the origin of Rights in early times, which
depended upon the will of the individual, corresponds
in later times that change of existing Rights or
establishment of new ones, which is effected by the
combined will of the community. This, indeed, seems
to mark the distinction between Legislation proper
and Scientiﬁc Law. It is not, nor ever can be, the
province of Science to effect a radical change in the
Law, although by exhibiting its deﬁciencies in their
proper light it may be instrumental in its reforma-
tion; nor is it the business of Legislation to descend
into those thousand-and-one details upon which the
actual application of the Law depends. The only
result is to place rigid fetters upon the free play of
human intercourse. It" is as though the practitioners
of a science were compelled to use a particular text-
book. The progress of every science is the same.
In Geometry comes a Descartes, and a revolution is
produced; by no means, however, are the students of
Geometry still condemned to use a text-book of the
seventeenth century. The principle once received, im-
provements in its application are being continually
perfected, until a Hamilton comes with his Quater-
nions to start the science on a new course. The same
X1 THE REGULATION OF RIGHTS. 233
thing is repeated in Law. The rules of Law depend
upon a number of matters, upon knowledge of
Economics, upon the progress of Ethics, upon changes
in Society. At intervals, then, it is necessary for a
radical change to be made. This is beyond the power
of Jurisprudence. The pressure for change must
come from other quarters, though Jurisprudence may
point the way to it. The actual change, indeed, must
be made by the combined will of all, for only so can
conﬂicting interests be satisﬁed. But this once done,
the sphere of direct Legislation is past. The details of
Law form materials for a science of which in England
there is hitherto but little conception. In Rome alone
has its importance been fully realised and the best
minds devoted to its pursuit. With us it is of yes-
terday’s creation only, and its adherents are hardly
sufﬁcient to form a school.
Some such division of labour, though not, indeed,
exactly carried out, is visible between the legislation
of the Praetors and the writings of the J urists. It has
been suggested that the former were at ﬁrst actuated
rather by fear of convulsions than a love of equity, and
that their reforms were meted out with a scanty hand.
“ At Rome, as the intervention of the Praetor was at
ﬁrst dictated by simple concern for the safety of the
State, it is likely that in the earliest times it was pro-
portioned to the difﬁculty which it attempted to get
rid of.” 1 In other words, the reforms were conﬁned
to such actual changes in existing Rights or recogni-
tion of new ones as the popular voice demanded.
1 Ancient Law, p. 66.
234 THE NATURE OF POSITIVE LAW. [X
Thus the dissolution of the old family ties had broken
down the intimacy in which the agnati lived,—the
relatives, that is, connected on the paternal side, to
whom the Law awarded in certain cases the inherit-
ance of an intestate. At this point the Praetor stepped
in and decreed that division should be made among
the cognati, that class who in course of time had come
to correspond more to the actual family relations.
But the most perfect example of the subject we are
now discussing exists in the Roman Law of Posses-
sion. This is a matter, indeed, which in England
has received but little attention, a fact which shows
that the recent revival of interest in the Civil Law
has not yet led us far into its details. This and
similar errors will never be rectiﬁed until we realise
that the Science of Law must deﬁnitely be studied
for its own sake, with no immediate view to practice.
For such purposes the study of Possession affords
peculiar attractions. It is true that the subject is
specially Roman. In England we have little that
corresponds to it, for though a parallel has been drawn
between it and equitable ownership, the differences
are too striking to render the comparison of much
value. It must not be forgotten that the institution
of different systems of Law are rarely the same—a fact
which seems to have been overlooked by Sir Erskine
Perry when, in the preface to his translation of
Sayigny’s Treatise on Possession, he urged that some
one should write upon the corresponding title in
English Law. A moment’s consideration shows that
such title does not, to any considerable extent, exist.
Xl THE REGULATION OF RIGHTS. 235
The fact is, that the interest attaching to the subject
exists in the perfect specimen we here obtain of the
creation of Law. Most. Law, as we know, begins
with Custom, and passes on to Legislation. Some-
times, but not always, Science gets hold of it before
or after the latter stage. But in the case of Posses-
sion, though the element of Custom is not wanting,
yet the Right, as such, seems to be created by Legis-
lation. It is then passed on to Science, and we obtain
a succession of rules gradually worked out by the
Jurist and adapting themselves more and more to
the requirements of actual life.
The origin of Possession is, indeed, very remote, but
not so much so as to forbid plausible conjectures. Thus
we have seen Rights arising by capture from an enemy,
or by ‘an assignment of land to the individual. There
still remains, however, the rest of the public land, and
although this may be occupied, yet no Right over it,
according to the Civil Law, can exist. Then, we are
told, the Praetor interposes with his interdict, and by
protecting the occupant creates in him a Right. Such,
at least, is the conclusion drawn by Ihering from
Niebuhr’s conjecture. A Right, according to him, is
a protected interest. But Possession is obviously a
protected interest, therefore Possession is a Right.1
Professor Hunter, again, draws attention to the fact
that foreigners could have no more than Possession of
a thing, and hence rules on the subject must have
been invented on their account also. Others are con-
tent to abandon the question of Right altogether, and
1 Der Geist des Ro'mischen Rechts, iv. 35 1.
236 THE NATURE or POSITIVE LAW. - [x
to say that the Preetor merely interposed to prevent
quarrelling, without intending to inﬂuence the legal
aspect of the matter at all. The whole subject is,
indeed, one of the greatest interest; but while Germany
still produces treatise after treatise on the subject,
nothing has been done to it in England. With us
there seems to be an impression that Savigny is to be
regarded as having closed the subject, though such
is certainly not the opinion abroad. He cleared up,
of course, many doubtful points, and his work marks
an epoch in the study of the question, but it hardly
gives a clear and intelligible account of the whole
matter to a reader who comes to it for a solution of
his difficulties. Indeed, he leaves us in one at least of
the difficulties which beset the Roman J urists them-
selves. The question that continually presses on them
is whether Possession is a matter of Fact or of Law.
On this point their work all tended in one direction.
They saw more and more that the fact of Possession
was the origin of a Right, and that the Right, once
raised, must be governed by legal rules, quite apart
from the Fact, just like any other Right. But Savigny
does nothing to assist us on our way to a satisfactory
conclusion when he asserts that Possession is both a
Fact and a Right.1 The statement may, no doubt, be
true in a way, but it is perfectly useless. What we
want to know is how the Fact came to be clothed
with legal attributes, until in many cases it existed
as a simple Right. For our present purpose, the
subject is particularly important as illustrating the
‘3.21%
1 Possession, p. 20.
X1 ' THE REGULATION OF RIGHTS. 237
development of legal rules by scientiﬁc treatment,
and of this the following example may be given.
It is well known that Possession must be gained
by the acquisition of physical control (corpore), united
with an intention to possess as owner (animus olomini).
When these exist in the same individual there is no
doubt as to the result. Sometimes, however, they
are divided. The physical control is acquired by an
agent, the intention exists in the principal. When
this occurs, the idea of Possession as being a mere
Fact has been already given up ; it is now a juridical
relation, and its effects may be credited to one or
another according to ﬁxed rules of law. The change
becomes very evident as we trace the doctrines of
the J urists upon the existence of intention in the
principal. The question ﬁrst arises in connection
with a slave’s peculium. If a slave acquires Posses-
sion causa peculii, need his master have immediate
knowledge of it, and so form a present intention to
possess? No, says Paul, for this is sufﬁciently im-
plied in the original permission to the slave to have a
peculium (D. 41, 2, 1, It must be noticed, how-
ever, that this is an important extension of the early
notion of Possession. It probably arose from the fact
that it was often only technically distinguished from
ownership, and as the permission to have a peculium
carried with it the permission to transact all business
matters in connection with it, it became necessary
for the acquisition of Possession in this manner to be
sanctioned. We are here, indeed, brought face to
face with the guiding principle of the Roman jurists
238 THE NATURE OF POSITIVE LAW. [x
in the construction of legal rules. i There has been
much controversy as to the real value of the Roman.
Law to the modern world, and some have said that
in it we see the great masters at work in the formaq
tion of law, and that the importance of studying
their method continues, though the work itself may
now be valueless. Such an example we have in the
present case. The above opinion is that of Paul, and
was given when the matter was quite settled, and a
good reason, founded on the general consent of the
owner, had been found for it. In the time of Papinian,
however, this apparently had not been thought of,
yet he arrives at precisely the same conclusion (D.
41, 2, 44, 1). And why ? Because, eager as were the
Roman J urists to deduce all their conclusions in strict
accordance with principle, yet they never pushed this
too far. Papinian knew well enough that Possession
ought to be acquired by the slave causa peculii with-
out any direct interposition of the owner, and so he
forbore to put any hindrance in the way, but allowed
it utilitatis causa. “ Dioci utilitatis causa jure singu—
lari receptum, ne cogerentur domini per momenta
species et causas peculiorum inguirere ” (ibiol) The
sagacity of the elder Jurist is justiﬁed when at a later
date Paul no longer sees here a case of jus singulare,
but is able to bring it under a more deﬁnite rule.
This, indeed, as I have already pointed out, should
be the method of all law; ﬁrst the formation of a
rule; then the discovery of the jus singulare for a
particular and important class of cases; and lastly
the subsequent discovery of a broader basis for the
X] THE REGULATION OF RIGHTS. 239
original rule, so as to include the jus singulare in it.
The point for practical consideration is whether the
special class of cases is worthy of this departure from
the original rule. It is, moreover, obvious that in
the case under consideration the master’s Possession
is no longer a Fact, but a mere matter of Law, and
hence the Law refuses to reckon it to him unless it can
approve the original acquisition by the slave. Thus,
where the slave’s possession is grounded on fraud or
violence, it does not avail for the master (D. 41, 2 ;
J avolenus, 24).
The same rule applies also to a s0n’s peculium,
but the juridical relation of Possession receives here a
further development. The acquisition by the father is
grounded not on ownership, but on the potestas, and
it occurs even when the father is ignorant that the
potestas exists (41, 2; Ulpian, 4). Hence there is
another extension of the rule. The father has no
intention as to the son’s peculium at all, and thus
an intention cannot be implied for each particular
acquisition. But in this case the intention that can-
not be implied from the facts of the case is implied
from custom. The slave’s peculium is reckoned a
matter of favour ; hence the master’s intention that he
should hold it must really exist: the son’s peculium
is a matter of custom; hence an intention on the part
of the father that he should hold it can be implied
even when it does not exist. So far the course of de-
velopment is clear. The rule ﬁrst requires an actual
intention on the part of the principal: then this is
supplied in the case of a slave from the. permission
210 THE NATURE OF POSITIVE LAW. Ix’.
actually granted to him to hold the peculium ; in the
next place it is implied in the case of a son’s pecu-
lium from the fact that such permission is usually
granted; in this case, then, both the general inten-
tion and the special intention are alike implied. But
the presumption of law having gone so far, a ﬁnal
step is now taken which at once severs the connection
between Possession and Fact, and leaves Possession
as a purely juridical idea. So far, if an intention has
been implied, it has at least been implied where it
can exist; now it is implied where such actual exist-
ence is impossible, for this is certainly the case when
the owner of the slave is an infant or a madman (41,
2; Paul, 1, 5; 32, 2). Thus we have now reached
a stage in the development of the doctrine as to the
acquisition of Possession by means of another, in
which the existence of an intention in the principal
is clearly not necessary, and this relaxation of the
rule being once established, it is useful for other
cases also. Thus it had been held that a corporation
could not acquire for want of intention (41, 2 ; Paul,
1, 22). But if a slave can acquire for a madman, so
surely he can also acquire for a corporation. A way
was thus presented of solving this difficulty without
resorting to a jus singulare. It was, indeed, objected
that the corporation could not possess the slave him-
self to start with, but this apparently was overruled.
But the doctrine has yet a further step to take.
The corporation at least consists of persons, though
it has no individual will. Not so with an hereditas
jacens. This is a person only by a mere ﬁction, and
‘x1 . THE REGULATION ‘or RIGHTs.‘ '241
can certainly be credited with no intention- of i any
kind whatever. Papinian, however, permits a slave
to acquire for the inheritance (41, 3, 44, 3), though
his opinion is not ‘quite ‘settled (41, 3, 45), and he
bases it upon the admission of ‘a jus singulare ; but
we have already seen that the doctrine on this subject
was not fully developed in his time. I
I have been led to give the above example at
some length, because it shows in a very clear way the
manner in which the Roman jurists did their work.
They start from the strict rule that in every case a
distinct intention to possess must exist on the part of
the principal, yet they adapt it in such a manner to
successive cases that the express intention not only
vanishes entirely, but acquisition of Possession is
permitted where it cannot possibly exist. - The whole
matter forms one of the most remarkable cases we
have of the gradual regulation of Rights by J uris-
prudence. -
We are now in a position to consider the results
at which we have arrived. We originally selected the
Roman State as affording us the best instance of the
rise and development of Law, unaffected by external
circumstances, and we have seen that it is born in
the midst of a natural harmony which precedes Law
as we understand it, and which makes its origin and
growth possible. Hence Private Law presupposes
the existence of private Rights existing by the will of
the owner and with the assent of the community.
To these Rights, thus existing of themselves, there are
then gradually added Protection and Regulation. The
R
242 THE NATURE OF POSITIVE LAW. '[X
Protection" of Rights we have already examined. To
make it efficient it is necessary that the force of the
State should beat the disposal of those who have the
immediate regulation of Rights in individual cases,
and it is this regulation of Rights that brings us into
the province of Jurisprudence. The Law originally
is that which individuals usually do; it is custom
; properly so called. But this is only deﬁnitely deter-
mined when a disputed case comes for judgment.
Immediately upon this Science comes into play, and
these judgments are the material upon which it Works.
By observing them it tries to become conscious of ﬁxed
rules according to which they are given, and these
rules it then expresses in words; so that, as Paul
says, “ regula est, quae rem, quae est, breviter enarrat”
(50, 1'7, 1). It is here, indeed, that we seem to see
the point of division between Science and Practice.
Each has its proper department, and each reacts upon
the other, but their spheres ought not to be con-
founded. Practice exists ﬁrst in the judgments on
particular cases. Science then steps in and com-
mences to frame rules upon the results of practice.
These rules are afterwards issued to the judges to
guide them in their decisions; but though they may
be decisive at the time, and though in the judges’
hands they may be immutable, yet in the hands of
the J urists they are always in .. a state of progress,
and the rule in its successive shapes/strives to express
thev Law more correctly.
It is in accordance with
this that Paul says again, “ non ut ex regula jus
sumatur, sed ex jure, quod est, regula ﬁat.” Hence,
X1 THE REGULATION OF RIGHTS. 243
as he proceeds to remark, following Sabinus, a rule is
merely a conjecture as to the ground of decisions, and
has no application after a mistake has been found in it.
Thus far the Law that we have been considering
is Customary Law proper. The only desire of the
judges is to decide according to usual practices; the
only desire of the J urists is to deduce rules from
these judgments and to make the rules express more
correctly the habits of everyday life. After a time,
however, this plain method has to be abandoned.
Legislation steps in and boldly alters old Rights or
creates new ones; and Science asserts a claim to state
rules of law not as they are but as they ought to be,
and this, of course, is necessary.
In the conﬂict of interests which results from the
growth of the State, there must be some ultimate
authority upon the creation and alteration of Rights.
But at ﬁrst this authority acts with difficulty, and is
only evoked upon great occasions. It delivers general
orders, but all the details have to be worked out by
the J urists. At this point a peculiarity is visible in
Roman legal history. The position of the Praetor
produces a state of affairs quite unique. He stands
on the borderland between Legislation and Science.
We have, indeed, other Legislation in the form of laws
passed by the Comitia ; but to the Praetor are granted
separate and exceptional powers. Moreover, he may
be himself a Jurist, and is at any rate much inﬂuenced
by them. We thus have in his edict a blending of
Legislation proper and of Science. Ideally these two
stand on a level, but proceed from different sources.
244 THE NATURE OF POSITIVE LAW. [x
Statute Law comes direct from the State; Scientiﬁc
Law comes from the Professors of a Science. In the
'Praetor the. two meet and the union produces a
quickening inﬂuence on each. But this ‘can only be
temporary. The Praetor is really equal to neither
duty. He is not great enough to represent the State;
he is not wise enough to represent a Science, and hence
a fair distribution of work is not yet attained. Owing
to the rapidity of Legislation produced by the Praetor’s
position, this method of making law becomes for a time
unnecessary. Science must be called in to digest and
arrange the material already collected. Hence we
arrive at the golden age of Roman Jurisprudence, a
time when Law occupied the highest position it has
ever yet attained. But upon this subject it is im-
possible to add anything to what has been already
said by Sir Henry Maine (Ancient Law, ch. ix.)
I have remarked that the J urists, in course of
time, claimed to put forward rules expressing the Law,
not as it is but as it ought to be, and this, of course,
was right. Custom can only exist where similar cases
continually recur amongst the same people. But as
Rights increase in complexity, there are cases which,
though of frequent occurrence, are yet isolated from
each other, and thus cut off from the inﬂuence of
Custom. While, then, to the latest times, Customary
Law proper may be made in accordance with the
practices of special classes of the community, yet this
becomes impossible as to the interests of the community
as a whole. It is therefore essential that the J urists
should boldly map out a course of their own. Much
X1 THE REGULATION OF RIGHTS. 245
has been said of the vigour with which this was done
by the Romans, and great inﬂuence has been ascribed
to the manner in which they took the Law of Nature,
as presented by Greek philosophy, for their guide. I
have already suggested, however, that though some
leading principles were borrowed from this source, yet
in the more useful and humble parts of their work
the J urists were content to adopt the only principle
which Law has ever really known, and to work not
for the realisation of Natural Law but for the con-
venience of men. The actual records of the Roman
Law show that at least a very considerable number
of modiﬁcations in it were made “ utilitatis causa.”
For a time, then, Law at Rome was in the proper
hands ; it was moulded by the discoveries of Science.
But the separation between Legislation and J uris-
prudence was now too complete. It was impossible to
place the latter upon so sound a basis that all its pro-
fessors should accept the same results as true, and till
this is done its complete independence of the State can
never be established. The result was already felt when
the State intervened, and pointed out to the judges
the manner in which the writings of the great Jurists
were to be used. Thus a rescript of Hadrian made the
opinions of certain J urisconsults (quibus permissum
est jura condere), when unanimous, binding on the
judges. This, however, seems to be only a fair recog-
nition by the State of the claims of Science. It
is a law rather compelling the judges to observe its
decrees than attempting to fetter it in its operations.
Perhaps the next step was due to the decay of Science
246 THE NATURE OF POSITIVE LAW. [X
itself. The greatness of Roman Law depends chieﬂy
on that golden age of J urists of which I have spoken.
For its proper development to have gone on, that age
must have continued. But it had the same fate as
every period of creative genius. The J urists came to
an end. They had no successors who could carry on
their work and harmonise their principles, and the
decision of cases came to depend upon the number of
opinions on one side and on the other that could be
gathered from their writings. The next step taken
by the State was in the right direction. If the old
Jurists were to rule, they must speak for themselves.
Now, Papinian had secured a distinct pre-eminence
amongst these writers, but his opinions had been an-
notated by Paul, Ulpian, and Marcian. A law of
Constantine (821 AD.) withdrew all authority from
these notes, but otherwise left the judges unfettered.
Finally, about the year 420 A.D., it was found neces-
sary to make the way still clearer. Five J urisconsults
only were to be consulted--—Papinian, Paul, Gaius,
Ulpian, and Modestinus. The writings of the rest are
only worthy of attention if quoted by one of these.
When they are at variance, the majority is to pre-
vail ; if they are equally divided, the opinion of
Papinian is to prevail ; if Papinian gives no opinion,
the judge can choose whom he will follow.
This is a lamentable instance of what must happen
when Science fails. If no new discoveries are made
we must cleave blindly to the old writers, and truth
lies_ in a majority of antiquated opinions. At this
stage it was natural that a demand for a code should
X1 THE REGULATION "OF RIGHTS. 247'
be made, though this did not at ﬁrst take the form
which it ﬁnally adopted. The time of the great J urists
had been succeeded by an era of legislation, and
this was the natural result of the centralisation of all
civilised government at Rome. Even the position to
,which Law had there attained was not sufficient to
.- release it from the effects of State control. This is
but another instance of the old truth that all the best
energies of human genius die away when they consent
to produce their work at imperial bidding. The J urists
lost the free and independent position they had
hitherto occupied, and instead of writing treatises of
Law consented to draught imperial rescripts. The re-
sult is visible in the different estimations in which the
Digest and the Code are held. The Digest represents
the free efforts of Science, and is everywhere read and
quoted. . The Code contains only opinions uttered in
the Emperor’s name; its perusal is a matter of little
interest; and where its conclusions are still valuable,
they are so rather as illustrating the principles of the
Digest than as creating any new principles of its own.
A careful comparison of certain parts of the two
works shows that the additions given by the Code are
largely concerned with matters of merely arbitrary
enactment, such as the priority of different classes or
debts. A certain amount of interest attaches, of
course, to an examination of these, but there is little
trace of any deﬁnite principle, and the distinctions are
rather the mark of superﬁcial legislation than of sound
legal sense. It must not be forgotten that, great as was
the position which Science had attained, it was unable
248 THE NATURE OF POSITIVE LAW. [X
to keep it, and its history should rather serve as a
warning against the snares into which it fell, than as a
model to be followed. At Rome the Science of J uris-
prudence became extinct as it passed under State in-
ﬂuence ; perhaps it will only rise to consideration
among us as it shakes itself free from that inﬂuence.
The activity of Legislation which marked the later
empire is, of course, not to be deprecated altogether.
New institutions were arising which were proper for
such regulation. Thus the Code rightly contains im-
portant provisions upon the position of the colonus—
the farmer who had succeeded the slave in the culti-
vation of the soil ; and on the tenure by emphytensis,
which was always becoming more important. The
matter for regret, however, is that the spread of
Legislation was coincident with the decline of Juris-
prudence. Hence when, amid the multiplicity of laws,
a demand for reform arose, this was conﬁned at ﬁrst
to a collection of the imperial legislation. This demand
was satisﬁed successively by the Gregorian, the Her-
mogenian, and the Theodosian Codes. Theodosius,
indeed, saw that his work was incomplete so long as
the doctrines of the old Jurists were not included in
it, but his project for a vaster undertaking was never
carried out. A hundred years elapsed before this was
done by Justinian. Upon the result of his work I
need say little. Valuable as it is, and great as its
inﬂuence has been, it has been truly remarked that it
is a lasting example of what a Code ought not to be.
It is a record of the best times of Roman J uris-
prudence, succeeded by an era in which Jurisprudence
X1 THE REGULATION OF RIGHTS. 249
was dead and Legislation had usurped its place. Had
it still existed, its work of arranging and of harmonising
the Law would have gone on; its principles might
have been established upon a basis strong enough to
resist State interference; and if in this state of things
a Code had still been called for, it would have been
produced from the midst of a School, not compiled at
the bidding of an Emperor.
In brief we owe the greatness of Roman Law not
more to the genius of the people than to the fact that
it was so long developed without interference from the
State. The course which events subsequently took
has had the greatest inﬂuence on modern Law. At
Rome, as we have seen, it grew up independently, and
only gradually fell under State control ; but when this
change in its position was effected, the Roman Empire
had spread itself over the world. This Empire, then,
with its external apparatus of force, was at ﬁrst all
that survived, so far as anything could survive, amid
the anarchy of the barbarian invasions; and as we
emerge into modern times we have the reverse picture
of Law, struggling, as it revives, to free itself from the
fetters which had been cast upon it; a struggle the
success of which has largely depended, in the past, as
it will in the future, on the amount of recognition
which has been bestowed upon the Roman Law itself.
250 THE NATURE OF POSITIVE LAW. - [xI
CHAPTER XI.
MonERN THEORIES or LAW.
WE have now traced the development of Law through
' its successive stages. The ﬁrststage has been shown
to have existed in the villagR-Bbmmunities of India.
Of our modern legal conceptions only two existed in
that stage, Law and Duty. But Law was by no
means the command of a sovereign. It was ascer-
tained simply by an observance of the customs of the
community, and as these had probably been arrived at
in the course of a natural adaptation to circumstances,
perhaps we have here the closest resemblance to a
Law of Nature which has yet been seen. The se_c3n_d
stage is surmised to have existed in the earliest times
of Rome. This introduces ﬁrst the conception of Right
as an individual privilege, and then the necessity
for a Sanction. Private interests arise at ﬁrst not
by a Law, but by the will of the individual and with
the assent of the community. In the regulation
and transmission of these interests, or, as we may
call them, Rights, custom gradually makes itself felt,
and so when a disputed case arises, the arbitrator who
is called in to decide it appeals ﬁrst to custom, and if
this fails he gives an opinion according to his own
X1] ' MODERN THEORIES OF LAW. 251
9
sense of justice. But the gradual increase of the
society, with the corresponding growth of disorder,
makes it impossible anylonger to do without a Sanction.
For this purpose, the military organisation of the
community is of great advantage, and the State adopts
the duty of compelling contending parties to accept an
arbitrator, and of seeing that his decision is carried
out. We cannot quite exclude from this stage the
rise of legislation, but it is convenient to reserve it
for the next. Here, then, we still have Customary
Law, with the Duties it imposes, and which ﬁll nearly
the whole life of the individual ; but we have further
the rise of private Rights, we have the institution of
customs with regard to these, and we have the gradual
accumulation of decided cases in which the judge’s
decision has rested merely on his sense of justice.
The tligdnstage is characterised by the conscious
regulation, creation, and alteration of Rights accord-
ing to ﬁxed rules, and this task is divided between
the Science of Jurisprudence and the Sovereign
Power. At ﬁrst the Sovereign Power is only exerted
on great occasions when the conﬂicting Rights of
different parties have to be adjusted; the chief work
is done by Science. The material which it at ﬁrst
uses consists of customs and decided cases; but it
extends its means of improvement when it turns its
eyes away from home and enquires into the laws of
other nations. Its progress is still slow, however,
until it learns to cast its looks neither behind nor
around, but in front. The doctrine of a Law of
Nature, which is to be the goal of Jurisprudence, makes
252 THE NATURE OF POSITIVE LAW. [XI
Q‘
the lawyers ready for changes, and we have the free
growth of rules of law according to principles of
utility. In this stage, then, we have Legislation in
full activity. At ﬁrst, indeed, it works slowly while
it is making the jus strictum. It is necessary to lay
the foundations surely that they may bear the super-
structure that is to be raised upon them. Then a
bolder spirit is displayed, when rules of equity are
brought in to mitigate the rigour of the strict law and
make its application to real life tolerable. Finally, the
spirit of innovation bursts its bonds. The old rules
are freely sacriﬁced, and an attempt is made to estab—
lish the fabric of law on a sounder basis. There the
process comes to an end. What Science might have
done at this point, had it survived so long, we cannot
tell, but Law had for many years fallen more and
more under the Sovereign Power. At the end of this
stage, then, the Austinian cycle of ideas is complete.
The Sovereign issues Laws; he thereby imposes
KKDuties and creates Rights ; and he enforces them with
a Sanction. I have already referred to the opinion
of Sir Henry Maine, that this represents the goal
towards which all civilised communities are tending ;
.I shall now, therefore, resume the task of enquiring
what other explanations have been given of the
theory of Law, and how it may be possible to recon-
cile these with that of Austin.v - In doing this I shall
consider in some detail the views of the, great German
jurist, Savigny, and of others who may be said to
belong to his school. It will be convenient to class
these together as belonging to the school of German
'xI] MODERN THEORIES OF LAW. 253
Jurisprudence. Of recent years, however, one dis-
tinguished jurist has advanced views which closely
resemble those of Austin, and we may'ﬁnd in some
of the utterances of von Ihering conﬁrmation of Sir
Henry Maine’s opinion. . It will, perhaps, be not im-
proper to consider these in connection with Austin’s
system, and we may thus conveniently speak of the
English and German schools of Jurisprudence. We
can state in a few words the points of difference
between them; these refer chieﬂy to the source of Law,
to its sanction, to its relation to Morality, and to the
test to which it must conform.
1. With regard to the source of Law.
The English School admits only the Sovereign to '
this position, though the legislative power may be used
either directly by the Sovereign or indirectly by his
‘subordinates, and though it may take the .form of direct
(Statute) or oblique (Judiciary) legislation; the Ger-
man School, on the other hand, looks for the primary
source of Law in the customs of the people, and, as
interests multiply and become more complex, in the
Jurists who then come to represent the people; direct
legislation by the State is added at a later time to
reconcile conﬂicting interests and to facilitate the
transition from one custom to another.
2. With regard to the Sanction of Law.
,The English School lays great stress on this,
regarding it as a constituent element in Law—the
ultimate basis, indeed, on which it rests ; the German
School admits of course its necessity for the realisation
254. THE NATURE OF POSITIVE LAW. [XI
of Law, but relegates it to a subordinate position and
contemplates at least an ideal possibility of Law exist-
ing without it. The real support of Law it ﬁnds in
the moral approbation of the people.
3. With regard to the relation of Law to Morality.
The English School regards these as perfectly
distinct, and its employment of the ideas of Sover-
eign and Sanction in the deﬁnition of Law makes
this distinction very clear. The German School
contemplates no such sharp line between the two;
Law exists not in separation from Morality, but as
supplementing it and making it possible.
4. With regard to the test to which Law should
conform. '
The English School here adopts the principle of
Utility as enunciated by Bentham; the German School,
l although it has not adopted this in so many words,
yet arrives at the same end by contemplating the
community as a Whole, in which a reconciliation has
to be effected between the interests of individuals
considered separately, and the interests of the Whole
considered as a community.
Of these different points, the most important are
certainly the ﬁrst two, dealing as they do with the
source of Law and the means on which it relies for
its existence. I ‘have already given certain reasons
in order to account for the different ideas that prevail
on these subjects; it will now be convenient to allude
to these more fully, and then we shall be in a position
to proceed to the details of the two systems. Before
XI] I-MODERN THEoRIEs or LAW. " ‘255
doing this, however, it will be well to add a word
in explanation of the terms I have used above. I do
not, of course, mean to imply that the theory of Law
which basesit on the consent of the people has uni-
versally prevailed in Germany, or that that which
bases it on the superior force of the Sovereign is
peculiar to England. The former, indeed, belongs
specially to modern Germany, and though it is bound
up with the names of Savigny and Puchta, yet its
real author was, I believe, Hegel. The latter was
prevalent in Germany in the. last century, and can
boast of the name of Kant. Hobbes, however, in
England, and Spinoza abroad, are its proper origin-
ators, and it was to the material thus supplied that
Austin applied his wonderful powers of analysis. I
use the above terms, then, rather for convenience of
reference. than because of their exactness, and this
. explanation will be sufficient to prevent any error
arising therefrom.
There were two great legacies which Rome be-
queathed to the mediaeval world. One was the pattern
of centralised government; the other the Law which
she had elaborated in the course of a thousand years.
These legacies were not designed for one people only,
but for the world at large, and their effect on the two
countries we are considering was curious. Of the
two each received only one immediately; the other
' was left till they should realise its value and make
an effort to obtain it. By a course of events, only
remotely indeed connected with Roman inﬂuence,
England obtained a ﬁrm centralised government
.256 THE NATURE OF POSITIVE LAW. [XI
sooner than any other nation, but at the same time
she. conceived a strong antipathy to Rome, and
refused to participate, openly at least, in the other
great beneﬁt she had given to the world. Germany,
on the.‘ other hand, though she seemed to be the
direct heir of the Roman empire, received this only
in name. The reality which she did receive was some-
thing quite different‘; it came not in the person and
court of the Emperor, but in the Digest of Justinian.
Of the two legacies, then, which Rome bequeathed, we
may say in brief that England received immediately
Empire, but no Law, and Germany received Law, but
no Empire.
We ﬁnd, therefore, a completely different state of
things in the two nations. In England we start with
a strong centralised government and trace the growth
of Law. It is inevitable that under such circum-
stances it should appear to proceed directly from the
Sovereign. To such an extent is this the case that
even the existence of Customary Law is denied, and
we are told that this is a mere ﬁction by which judges
impose their own law on the nation. The idea, then,
that the State is directly or indirectly the source of
all Law governs our whole Jurisprudence. Upon this
the analysis of Austin is founded, and the discovery
of Sir Henry Maine that it is not applicable to all
races at all times is at ﬁrst felt by the student of
Law to be a puzzling anomaly. '
In Germany, on the other hand, the course of
1 affairs is quite different, and the central point in this
'1.)
...€.’\
difference is the open introduction of the Roman Law.
X11 MODERN THEORIES OF LAW. 257
This has been well described as a part of the general
return to the wisdom and learning of antiquity which
succeeded the confusion and barbarism of early
mediaeval times. In Italy it had remained in force,
nominally at least, till the twelfth century, but at
this time attention was again called to it by Irnerius
and the school which he founded at Bologna. It
made its way into Germany only gradually, and the
main reason of its progress was the fascination it
exercised upon the minds of J urists. Attempts have
been made to assign its promulgation as law to a
decree of the Emperor Lothair, and to a judgment of
the Imperial Court of Justice in 1495: the former,
however, is probably a fable, and the latter assumes
the existence of the Law and does not introduce it.
In the words of Puchta, “ it was not through any
external power, but by the force of scientiﬁc convic-
tion, that the Roman Law, just like the philosophy of
the Greeks and the masterpieces of the old world in
general, found entrance and new life.” 1 It is not to
be denied, however, that it derived a certain amount
of assistance from the idea that in Germany the
ancient Roman Empire was being continued. But
though it was supported in this twofold manner, we
must not suppose that it effected an easy entrance:
there was no failure of those who defended the
existing German law, and it was not till the middle
of the sixteenth century that it secured full re-
cognition.
I have said that this recognition was due to the
1 Pandehtenrecht, p. 1.
S
258 THE NATURE or rosITIvE LAW. [XI
sense the J urists had of the inherent excellence of
the Roman Law, and this has been given as an ex-
ample of the creation of Customary Law by the J urists
as representatives of the people. Few questions, how-
ever, have given rise to such keen contests in recent
years, and this, by reason of the difficulty of reconcil-
ing the existence of the Roman Law in Germany with
the cardinal principle of the historical school of Law‘
which Savigny founded, the principle, viz., that the
Law is the outcome of all the past circumstances of
the people. Now nothing can be clearer than that the
Roman Law existed in Germany as a foreign body
of Law; it therefore could not be Customary Law in
the original sense, that is, as being practised by the
people. But then, it is said, the J urists represent the
people in matters of Law, and they adopted the
Roman Law to supply natural wants. The answer to
this is obvious, that the J urists themselves did not know
in all its details the Law which they were importing,
but accepted it as a Whole. The fact is, as Wind-
scheid remarks, that they “ were under the inﬂuence
of an intellectual current which strongly prevailed
in their time, the irresistible return to the ancient
culture, the glamour of which dazzled their eyes.” 1
The same inﬂuence was at work in England also,
but here the judges were the only J urists, and they
borrowed from the Roman Law secretly ; in Germany
the J urists existed as a distinct class, and they
adopted the Roman Law openly. All that mine of
legal wealth was too valuable to be neglected when
1 Pandektenrecht, i. 26, note.
X11 MODERN THEORIES OF LAW. 259
rules of law had to be formed for new nations; but in
England it was concealed under the ﬁction of Custom-
ary Law as declared by the Judges, in Germany it
contributed to the formation of the idea of the inde-
pendence of Law, which has characterised the modern
Jurisprudence of that country.
The above considerations seem to give us a clue
to the difference that exists between the abstract
conceptions which lie at the root of English and
German Jurisprudence. The English Jurist regards
Law as the creature of the Sovereign, and lays
stress upon the Sanction by which it is enforced. If
it is objected that many rules are certainly not
laws made by the Sovereign, he replies that they
exist by his sufferance and that this is equivalent.
Such a barefaced ﬁction as this could only have
passed current with a people whose. legal ideas dwell
in a realm of ﬁction. It is perfectly clear that
but a small portion of private law in the past has
been created by the Sovereign; the rest has been due
to Custom and to such legal Science, assisted by
Roman Law, as England has happened to possess.
But in Germany these distinct sources have long been
recognised)‘ The customs of the country were never
so rudely dealt with as many of those which obtained
in England before the Conquest, while the acceptance
of the entire Roman Law, and the fact that this was
made the basis of legal study, gave to the rules
established by the J urists a value quite independent
of any authority derived from a Sovereign power.
Hence the German Jurist lays no great stress upon
260 THE NATURE. OF POSITIVE LAW. [X1
the State in his ultimate conception of Law, and he
discards the idea that a Sanction makes any necessary
part of it. The idea from which English J urispru-
dence starts is, that Law is intended to restrain a
refractory people. Hence the necessity for a Sovereign
to impose it, and for physical force to ensure obedi-
ence to it. German Jurisprudence, on the other hand,
starts from the idea that Law exists only to ensure
the due liberty of the individual; from the customs
of the individuals it originally springs, and as they
obey it willingly, a Sanction is no essential feature in
it, but merely an occasional necessity. This position
may seem anomalous to those who compare the actual
liberty enjoyed by the German with that enjoyed by
the English citizen ; but it must be remembered that
we are now contrasting the abstract conceptions of,
different philosophers, and that these may not corre-
spond exactly to the facts of life. There were special
reasons which made Austin place the idea of
sovereignty at the base of his theory of Law, in
exactly the same way as there were special reasons
which induced Savigny to prefer the idea of indivi-
dual liberty. Austin was inﬂuenced very largely by
the political writings of Hobbes, and Hobbes, with
the spectacle of civil strife before his eyes, was
anxious above all things to ﬁnd somewhere a strong
restraining power, even though he should incur the
reproach of upholding despotism. Moreover, Austin
wrote at a time when England was in need of vast
legislative reforms, when there was no school of Juris-
prudence which could take any share in the work,
XI] MODERN THEORIES OF LAW. 261
and when full conﬁdence was placed in the power and
wisdom of Parliament as a legislative assembly. It
is not wonderful, then, that he should have adopted
Sovereignty as his ultimate idea, and have hoped to
build on this a science of Jurisprudence sufficient to
meet the wants of men. Savigny, on the other hand,
wrote in an age which was longing to give expression
to national union, and he took his stand upon the
principle of nationality. Law was, in the ﬁrst place,
the outcome of the customs of a people sprung from
the same stock and possessing the same feelings and
ideas. They practised the same customs as naturally
as they spoke the same language, and Law was at
ﬁrst merely the expression of this. Then, when this
national unity found expression in the formation of
the State, it was possible for the next step to be
taken. The common will of the people is now ex-
pressed by Legislation. Finally, Science takes up
the work when the complexity of affairs renders
necessary a division of labour, and not only arranges
and expresses the existing law, but in several ways it
is inﬂuential in making new law also. Each of these
systems is of course only an abstraction, and it is for
us to consider which of them represents most nearly
the facts of life, or which will have the best inﬂuence
upon the future development of Law; it is not im-
probable, indeed, that each contains valuable elements
of truth, and we may, perhaps, ﬁnd some means of
availing ourselves of these without becoming bound
to the acceptance of either system in its entirety.
262 THE NATURE OF POSITIVE LAW. [XII
CHAPTER XII.
THE MODERN GERMAN SCHOOL or JURIsPRUnENcE.
THE general distinction that is always apparent when
we compare the ordinary German with the ordinary
English Jurisprudence is, that the former leans towards
an ideal view of Law, the latter to a strictly real view;
in reading German works we see a system unfolded
which would be perfect could it only be realised, while
in English works we are continually reminded of the
slow pace at which Law really follows after the wants
of men. Thus to the German the only distinction
between Law and Morality is, that the former springs
from and supplements the latter; while to the Eng-
lishman the continual difference between the two in
actual life leads him to characterise each by distinctive
marks. It is true that even the German recognises
the fact that this discrepancy exists; but he either
says enigmatically, like Savigny, “ that this implies
no contradiction,”1 or more intelligibly like Trendelen-
burg, that it is useful to hold to the idea of their proper
relation on account of “ the power of improvement and
1 System des heutigen Ro'mischen Rechts, sec. 52. Most of the fol-
».Iowing extracts are taken from the French version.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 263
rectiﬁcation which it contains in itself.” 1 In this
phrase, indeed, we have the key to the whole difference.
In no case can our idea correspond absolutely to the
facts of life; but the German chooses such an abstrac-
tion as shall tend gradually to improve the facts, the
Englishman is contented if his abstraction correspond
at least to some'of the facts as they are. The former,
we may say, chooses his ideal in the hope that the facts
may come up to it, the latter resolves to make an
approximation to existing facts, and is content to alter
it as the facts change. Thus to the German, Law is
a supplement to Morality, and does not necessarily
imply the idea of Force; to the Englishman, Law is
distinct from Morality, and bases its claims upon
Force solely. In considering, then, the following views
of German writers, it will be necessary to keep this
distinction continually before us.
The point of divergence between what we have
called the German and the English schools of J uris-
prudence, is to be found in the fact that the former
regards Law as a Rule, the latter regards it as a
Command. This may seem strange to readers who
have been accustomed only to Austin’s analysis, but
nothing can be clearer than the fact that this distinc-
tion does exist. I shall proceed, therefore, to consider
the nature of the Jurisprudence which is developed
from the former idea.
It must be remembered that German lawyers,
basing their system so entirely on the Roman Law,
have had their attention largely‘ conﬁned to private
1 Naturrecht, p. 93.
264 THE NATURE OF POSITIVE LAW. Y [xII
legal relations; ‘hence they derive their notions of
Law from the private Rights thence arising, rather
than from the Duties which are imposed by the State.
Thus Savigny starts from the idea of a Right as being
“ a power of the individual. Within the limits of this
power the will of the individual reigns, and reigns
with the consent of all.”1 But inasmuch as society
consists of a number of such individuals, each endowed
with a will of his own, it is necessary to draw a line
round the province of activity of each, in order that
the will of the individual in question may not pass
outside this, or the wills of others intrude within it.
Hence we have the metaphor by which Savigny illus-
trates the nature of Law.
The external world, that is to say the medium in which man
exists, touches him at a thousand points of contact; but the
most important are his relations with the beings who have the
same nature and the same destiny as himself. In order that
free creatures, thus placed in the presence of each other, may
mutually aid and never impede each other in their development,
it is necessary that an invisible line of demarcation should deﬁne
the limits within which the existence and activity of each may
ﬁnd independence and security. The rule which ﬁxes these
limits and guarantees this independence is called Law.2
Law is thus. compared to an invisible line of demarca-
tion between the provinces of the wills of different
individuals. The domain appertaining to each repre-
sents the collection of his Rights, and in this way the
German distinguishes between the two meanings of
the word Recht. This province in which the will of
the individual reigns represents Recht in the subject-
1 System, sec. 4. 2 I bid. sec. 52.
xII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 265
ive sense; the line which surrounds the province, and
erects a barrier against the intrusion of other wills, is
Recht in the objective sense.
We arrive at the same idea, too, in another way.
A person may exercise his Rights for a long time with-
out thinking of their legal aspect because they are not
disputed, for “ a Right is never manifested more clearly
than when, being denied or attacked, the judicial
authority intervenes to recognise its existence and its
extent.”1 But when we come to consider how we are
to form a judgment upon the matter, we ﬁnd that we
must not regard the Right itself in the ﬁrst place, but
rather that legal relation between the parties of which
this Right may be only one particular aspect. The
introduction of this idea of a legal relation (Rechts-
eerha'ltniss) tends at ﬁrst to import a little difficulty
into the matter, but further reﬂection shows that it is
a point of slight importance, and is chieﬂy useful as
helping us to a convenient division of the Civil Law.
Thus, when Savigny says that a more attentive ex-
amination shows us that the logical form of a judgment
is merely an accidental part of the matter, and that its
substance “is only true and reasonable so far as it is
derived from a complete view of the legal relation,”2
he merely means that no judgment will be correct
which does not take into account all the circumstances
of the case. The manner in which he introduces this
idea seems to imply that great importance is to be at-
tached to it, but I cannot ﬁnd that it has any further
meaning than that just given. In the course of the
1 System, sec. 4. 2 Ibid. sec. 4.
266 THE NATURE OF POSITIVE LAW. [XII
Work, indeed, we see that the idea of a legal relation is
useful as leading to certain fundamental divisions in
the treatment of the Law, but with this, as I have
just remarked, its function is at an end. The idea
itself is, indeed, so unsettled that German writers are
divided as to its meaning, and opinions differ as to
whether it is to denote relations between men and
things, or is to be conﬁned to relations between men
only, and in this latter case whether it includes rela-
tions between juridical persons. It is enough to
remember that by considering the relations in which
men stand to each other, or to the world around
them, we can discover the possible ways in which
their wills can be exercised, and can thus mark off
all the possible kinds of Rights. For this purpose
the idea of a legal relation is of practical use, but for
no other. \
When then a particular Right has been attacked,
we can only form a judgment upon it by bringing the
case within a general rule. “ This rule is called Law
. . . It is manifested especially in a Statute, that is
to say, in a rule promulgated by the supreme power
in the State.”1
According to Savigny, then, in considering any
question of law we take the individual as our centre.
The province of his activity, or the province of his
Rights, is everywhere in contact with the provinces of
other men. Whenever such a point of contact occurs,
we may say there is a relation between the individuals,
and if it happens to be governed by a rule of law, it .
1 System, sec. 5.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 267
is a legal one. These two ideas, indeed, go to make
up the one idea of such a relation. Thus every legal
relation appears to us as a relation of one person to
another determined by a rule of law, and this deter-
mining rule assigns to each individual a domain in
which his will reigns independently of every other
will. Hence every legal relation is composed of two
elements—J st, a given matter, that is to say, the rela-
tion itself; 2d, the idea of law, which regulates this
relation.1
Every relation in question, then, is governed by
a rule, and Law in general, regarded as a whole, is
the collection of such rules. It exists primarily for
the individual, and it draws a line around him in
order to protect the domain of his'will against intru-
sion on the part of others.
There are, however, strong reasons which make this
view of Law inadmissible. We may, indeed, begin with
the individual, and by adding these together ﬁnally
arrive atthe Whole, or the Community; but it is more '
convenient to start from the Community; to treat of
this ﬁrst, and then come to consider the Rights of in-
dividuals. As I have before said, Savigny’s system
is a convenient one for the exposition of private law,
but is not sufficient for the explanation of Law as
a whole. For the necessary correction we may refer
to the work of Trendelenburg.2 So far as it at present
concerns us, we may say that he lays stress upon the
fact that the individual only exists as a member of
the Whole, and that it is by considering the objects
1 System, sec. 52. 2 Naturrecht auf dem Grunde der Ethik, 1868.
268 THE NATURE OF POSITIVE LAW. [XII
and destiny of the Whole that we must frame rules
for the guidance of the individual. It is indeed with
reference to this Whole that he deﬁnes Law—calling
it, however, since it consists of persons whose wills
can be inﬂuenced by motives, the Moral Whole. Thus
he says that “ Law is, in the Moral Whole, the collection
of those Rules of action by which it happens that the
Moral Whole, with its association of members, can be
maintained and further developed.” 1 Of course to an
English reader this. deﬁnition of Law appears to con-
tain at once too much and too little : too much, because
it contains a test to which Law ought to conform ; and
too little, because it says nothing of the source or the
realisation of Law. But, without dwelling upon these
matters, it is enough to point out that here, too, Law
is deﬁned as a rule, though in a somewhat differ-
ent sense to that in which Savigny uses the word.
Savigny’s rule of law is a rule by which a judge must
decide a case; Trendelenburg’s rule of law is one by
which the individual must regulate his actions. It is
true that the latter recognises that this may have to
take the form of a command; thus he says that laws
are nothing'if they do not possess the power of the
Whole for the purpose of realisation—that is, if they
cannot be put in the form of a command.2 But he is
careful to point out that this should not be incorporated
in the idea of Law itself, but should be left to be drawn
from it by way of necessary deduction. The one thing
which we have to notice is, that the fundamental
notion of Law here presented to us is that of a rule
1 Naturrecht, p. 83. 2 I bid. p. 78.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 269
which, in the complex relations of society, is required
to regulate the actions of the individual members.
The next matter, then, which we have to in-
vestigate, concerns the origin of these rules; and
this will lead us to consider the sources of Law, a
matter upon which German Jurisprudence differs
widely from English. If we deﬁne Law as a com-
mand, we at once introduce the idea of a Sovereign,
and we can admit no law which does not proceed
from him. But if we deﬁne Law as a rule existing
for the purpose of regulating the actions of the in-
dividual in the interests of the Whole, though it
may be necessary to form a power for issuing and en-
forcing it—in other words, to erect a State, yet this is
only as a means to an end. The original source of
Law is that Whole for which it exists; hence, if the
people as a Whole can in any way frame general rules
of action, these will exist as good, and, indeed, as the
best possible examples of Law. Hence we arrive at
Savigny’s view that the people themselves are the
original sources of Law, and that Legislation is only
introduced when Custom becomes inadequate to regu-
late the increasing needs of society.
The principle of utility requires that the actions of
men should be so regulated as to produce the largest
possible amount of pleasure, and to spread the enjoy-
ment of it over the largest possible number of people.
It has been pointed out, moreover, that as the wants
of the individual are to him the best test of the plea-
sure he desires, this principle is, as a rule, most com-
pletely carried out when each person is allowed to
270 THE NATURE or POSITIVE LAW. [XII
satisfy his own wants in his own way. But when a
number of people have the same wants, and when they
know of only the same Way of satisfying them, they
will naturally perform the same actions in the attempt
so to do. This seems to be the origin of Customary
Law, and it is practically from this point that Savigny
starts. At the very beginning of human history we
ﬁnd the acts of men displaying a certain uniformity :
they all do certain things and abstain from doing other
things. We can only say, as we have done above, that
they arrive at this process by means of an unconscious
adaptation to surrounding circumstances. Of course
I do not mean to use the word unconscious in a very
strict manner. Men have always been guided by
reason more or less. Thus if we enquire what was the
origin of the three-ﬁeld system in agriculture, we
can only surmise that it was the suggestion of some
individual more sagacious than his fellows, and who
had also suﬂicient inﬂuence to have it generally tried.
This spontaneous adoption of a certain method is, in-
deed, of the very essence of a custom, and our ﬁrst out-
look upon mankind shows them to us as in a very large
measure’ ruled by custom. It is the central point of
Savigny’s doctrine that these customs are the result
neither of chance nor of an individual will. “ Positive
law springs from that general spirit which animates
all the members of a nation, and the unity of the Law
is revealed necessarily to their consciences, and is by
no means the effect of chance.” 1 There is a vagueness
in the phrase “ unity of the Law” which we need not
1 System, sec. 7.
x11] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 271
here enquire into, but the use of the word “ necessarily ”
shows that the growth of rules of law of this kind
identiﬁes them with rules of morality. So, too, when
we read of “ the unanimous recognition of positive law,
the feeling of necessity which accompanies its mani-
festations, a feeling so clearly expressed by the ancient
belief which attributes to Law a divine origin.“ It is,
indeed, this character of necessity that attaches to early
rules of law, which makes it impossible to separate
them from rules of morality. As an illustration of the
natural growth of certain practices, Savigny cites the
development of Language, to which I have adverted
on a former occasion :—
It is neither chance nor the will of individuals, it is the
national spirit which gives birth to language; but its sensible
nature renders its origin more easily perceived and understood
than in the case of Law. These different manifestations of the
general spirit of a people are so many characteristic marks of its
individuality, among which language holds the ﬁrst place as being
the most apparent.2
Law, however, has its tangible aspect also. This
is apparent in those symbolical actions which in early
times are used to express and to be a record of inten-
tions. Thus the main features of the mancipation are
probably anterior to Law as such, and have their origin
in the spontaneous customs of the people. The actions
of men, then, are, in the ﬁrst place, guided entirely by
these customs; when a ﬁeld is to be tilled, or a sale
to be made, there is not the slightest doubt as to how
this ought to be done : or should a doubt momentarily
arise, it will be at once settled by a reference to uni-
‘ System, sec. 7. - 2 Ibitl.
272 THE NATURE OF POSITIVE LAW. [x11
versal practices. Thus a person guides his conduct
by direct reference to the acts of his ancestors and
neighbours, and has no necessity for a rule. This is
what Savigny means when he says :—
Law, which lives in the common consciousness of the people,
is not composed of abstract rules. It exists rather in the actual
perception of a legal institute in its organic connection, and the
rule appears in its logical form so soon as the need for it is felt ;
it is then singled out from this connection, and is translated in
an artiﬁcial manner.1
The real process which seems to be hinted at here
is probably the following :—The mind of the indi-
vidual is gradually ﬁlled with recollections of the
practices which he sees going on around him. He
continually sees the same class of actions performed
in the same way. Hence, when he himself comes to
have to perform similar actions, he has no hesitation
as to the way in which he ought to do so. The
natural horror of discontinuity which governs the
whole moral nature of man, and upon which the feel—
ing known as conscience is perhaps founded, induces
him to conform his actions to the pattern which he
has in his mind. When Savigny says, then, that Law
lives in the conscience of the people before it is com-
posed of abstract rules, he means, apparently, that
each individual has a sufficient number of recollections
to serve him as models for all his actions, and that the
necessity for a rule is ﬁrst felt when such recollections
are wanting.
We have further to notice the effect which time
has upon Law. This produces two opposite ten-
1 System, sec. 7.
XII] MODERN GERMAN SCHOOL OF J URISPRUDEN CE. 273
dencies. Considered merely in itself, it has a tendency
to intensify an idea of law whether existing merely
as a custom or formulated as a rule. Such an idea,
once received among a people, roots itself deeper
every day; it gathers strength every day, and the
consciousness of law, which at ﬁrst existed only in
germ, gradually takes a determinate form.1
But time, considered in relation to the fact that it
produces a change of circumstances, has a tendency to
modify the law. The question, then, is how these two
tendencies are to be reconciled. In the infancy of a
nation this is done by a gradual change of custom, but
later on other means have to be provided, and these
are afforded by Legislation and legal Science. It is
only during the plastic condition of the nation that
Law naturally adapts itself to circumstances; this
adaptation must afterwards be effected by conscious
effort. This is what I have elsewhere called the
change from unconscious to conscious adaptation.
The main reason why this unconscious adaptation
becomes impossible, is to be found in the increasing
complication and conﬂict of different interests. The
following passage well describes this :—

It is especially during the infancy of a people that this
element (i. e. the natural development of law) acts with most
force and liberty ; for then the bond which unites the nation is
stronger and more generally felt, and the difference of individual
developments does not obscure the consciousness of this feeling.
But as these developments grow to be more unequal, and come
into more frequent collision with each other ; as special pursuits
and occupations produce greater isolation in the conditions of
1 System, sec. 7.
T
274 THE NATURE OF POSITIVE LAW. [XII
individuals ; so also the law, which has its source in the general
mind of the nation, is developed with more difficulty, and this
kind of development would cease altogether, did not new cir-
cumstances create for it new organs in Legislation and legal
Science.1
The office thus assigned to Legislation and Science
is to bring about those changes which the spirit of the
people, or more familiarly public opinion, demands.
The Law which they produce, therefore, rests on the
same ultimate basis as Law produced by Custom.
This is a short sketch of the origin of Law, as
conceived by Savigny and Puchta; and it has been
identiﬁed with the historical school of German J uris-
prudence. A sharp attack has been made on it in
recent years by Ihering in his Struggle for Law,2 and
he has objected especially to the idea that Law has
been formed, like language, unconsciously and pain-
lessly. Thus he says, “ every principle of Law which
obtains had ﬁrst to be wrung by force from those who
denied it.” 3 The central point, indeed, about which
his doctrines group themselves is, that Law is only
obtained by the gradual regulation of Force, and hence
he is strongly opposed to the current ideas which, as
we have seen, regard Law as a rule. Thus he says 2-—

Our theory of Law, it is only too easy to perceive, is busied
much more with the scales than with the sword of Justice. The
one-sidedness of the purely scientiﬁc standpoint from which it
considers the Law, looking at it not so much as it really is
as an idea of Force, but as it is logically, a. system of abstract‘
1 System, sec. 7.
2 This has been translated by Mr. J. J. Lalor, of the Chicago Bar,
1879. 3 P. l.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 275
legal principles, has, in my opinion, impressed on its whole way
of viewing the Law a character not in harmony with the bitter
reality.1
But it is clear that Ihering mixes up the different
functions of Force, according as it may be used to make
Law or to enforce Law. Conﬁning ourselves to the
former function, which is the only one with which we
are concerned at present, we shall ﬁnd that Ihering’s
theory is, in its turn, to a certain extent inconsistent
with the probable truth. He would, indeed, discard
Savigny’s account of the origin of Law entirely, and
he asserts that it is merely the result of importing
into Jurisprudence the romantic ideas which prevailed
early in the century in poetry.
That Law, or any principle of legal right, comes into exist-
ence, or is formed painlessly, without trouble, without action,
like the vegetable creation, is a really romantic notion, that is,
a notion based on a false idealisation of past conditions.2
From the recent information, however, which we
have received as to the origin of Law, we may be in—
clined to demur to this wholesale condemnation of
Savigny’s theory. Truth, as is usually the case, will
be found to lie between the two extremes. We need
not dispute the fact that all changes in Law have to
meet with a certain amount of resistance, and it may
be impossible to overcome this resistance without a
severe struggle; it is partly, indeed, for this reason
that Legislation is introduced, in order to effect
changes which it would be beyond the power of
Custom to bring about. Thus Ihering is to a large
1 Struggle for Law, p. 5. 2 I bid. p. 15.
27 6 THE NATURE or POSITIVE LAw. [XII
extent right when he says that “ all thorough reforms
of the mode of procedure, and of positive law, may
be traced back to Legislation.”1 But when he brings
forward, as an example, the power over debtors which
existed in ancient Rome, and says that this could
never have arisen without a severe struggle, we may
well take exception. Of the probable origin of this
right I have already given an account, and it seems
likely that though its abolition cost severe struggles,
yet its origin is to be found in the gradual growth of
Custom. Indeed all the research of recent years seems
to conﬁrm Savigny’s theory of the origin of Law, and
Ihering’s view merely serves to emphasise the fact that
custom plays a less and less important part as the
community expands, and the interests of different
classes come into conﬂict. But Savigny, too, recog-
nises this; and these, as we have seen, are the very
reasons which he assigns for the intfoduction of
Legislation and legal Science. Ihering’s special at-
tack is directed against the comparison of the growth
of Law with the growth of Language ; but it must be
remembered that this is merely a comparison for the
sake of illustration. The growth of Language is
really unconscious, but the growth of Law cannot be
entirely so. It is always, we may suppose, a matter
for discussion and suggestion, and a custom arises
when some one suggestion is generally acted upon. I
have already tried to describe the state of society which
is most favourable to the growth of Customary Law,
and to this we may properly apply Savigny’s theory.
1 Struggle for Law, p. 9.
xII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 277
But when we come to that second state in which pri-
vate interests arise, and in which classes stand opposed
to each other, then we must largely abandon custom
as a source of Law and turn to Legislation. Let me
repeat then that Custom is the true source of Law so
long as interests are identical and simple, but when,
in a later stage, conﬂicting interests have to be recon-
ciled, then we must have recourse to Legislation, and
when complex interests have to be adjusted, then we
must have recourse to Science.
As, then, Law springs from the wants and desires
of the People, and as Legislation and Science merely
exist for the purpose of reconciling and giving expres-
sion to these desires in the most convenient way, it is
important to consider what we are to understand by
the People; and, accordingly, Savigny next takes this
point into consideration. We have seen that Law
takes its rise in the common actions of individuals
' having the same interests; hence the People, which
consists of the assemblage of these individuals, must
be a society bound together by natural ties producing
community of feelings and interests. The natural tie,
as a rule, is a common descent, and its most conspi-
cuous mark is the use of a common language. But,
for practical purposes, it is necessary to determine the
extent of a people much more exactly than this, and
hence in the course of our enquiry we arrive at the
State, the point from ' which Austin begins. It is
instructive, however, to notice that in‘ the writers to
whom we are now referring, the expression State is
used where Austin would use Sovereign. This, too,
278 THE NATURE OF POSITIVE LAW. [XII
is a consequence of the distinction between the two
schools to‘ which I have already alluded. If Law is
a command, we must know from whom it proceeds,
and to whom it is addressed. Hence We have the
Sovereign and the Subjects, and these two together
constitute the State. But if Law is a rule, intro-
duced originally by the consent of all, we require,
when this simple method of introduction is no longer
sufficient, some organisation by which the wishes of
all can be ascertained. This organisation it is which
is called the State; it is simply the representative of
the people, and is not held to denote any opposition
like that between Sovereign and Subject. The account
which Savigny gives of the origin of the State is in
conformity with this idea.
If, now, we enquire what gives birth to the State,
we ﬁnd here, as for Law in general, a superior neces-
sity, an internal force which tries to escape, and which
impresses upon the State an individual character.
This force produces the State as it produces Law, and
we may even regard the realisation of the State as
the highest act of its power.1
It is convenient to notice that upon the intro-
duction of the idea of the State, we at once have a
division of Law into Public Law and Private Law;
the former regulates the State itself and the relations
of individuals to the State; the latter is concerned
with the relations of individuals amongst each other.
If, next, we consider what are the functions of the
State with regard to Law, we ﬁnd that these consist,
1 System, sec. 9.
xII] MODERN GERMAN SCHOOL OF J URISPRUDENCE. 279
ﬁrst in realising the Law, next in enforcing the Law,
and ﬁnally, though to a less extent, in forming the’
Law. It realises the Law by means of its judicial
power; it enforces the Law by means of its sanction-
ing power; and it makes Law by means of its legisla-
tive power. Of the former two functions I shall speak _
presently : we are here concerned only with the last.
We have thus seen that Law originally arises by
Custom, but that when the wishes of the people can
no longer be ascertained in this way, the State is
formed as their representative, and that this, in its
turn, is aided by legal Science. We may proceed,
then, to enquire into the position which is to be as-
signed to each of these sources in the making of Law.
1. Customary Law.
Savigny ﬁrst attacks a common error which occurs
in the use of this expression, and which is calculated
to give a false idea of it. Thus, it may be supposed
that a custom arose from an arbitrary decision in some
particular case, and from the repetition of the same
decision in subsequent cases through disinclination to
go through the trouble of forming a fresh opinion.
But this is to mistake the basis upon which Custom-
ary Law rests. It has “its existence and its reality)
in the consciousness of the people.”1 It is merely be-
cause this consciousness cannot be directly perceived
that we are driven to recognise the law “ by those
external acts which manifest it,—by usages, by man-
I ners, and by customs.”
1 System, sec. 12.
280 THE NATURE OF POSITIVE LAW.‘ [XII
A series of uniform acts betrays a common source, the belief
of the people, and nothing is more removed from chance or mere
arbitrariness. Thus, then, custom does not produce positive law,
it is merely the sign by which we recognise it.1
It has been naturally objected to this, however,
that the realisation of Custom in actual practice is
quite as necessary for its validity as Law as the pro-
mulgation of a Statute by the Sovereign, for indeed
in this way only can it be known. And yet the
existence of the Statute depends not on the promul-
gation only, but also on the power of the Sovereign to
enforce it. Similarly, on this other theory of Law, its
existence depends not only on the practice of the
custom, but on the conviction of the people that this
custom is the Law. The two points are reconciled by
Windscheid when he says that “in the practice of the
custom is the conviction of the people apparent that
“what they do is Law, and in this conviction lies its
binding force as Customary Law.” 2
Savigny, however, is aiming at a real distinction,
which is based upon the effect that the mere practice
has in forming the custom. Thus, he says that there
are two senses in which mere custom as such may be
said to have an effect upon the formation of ‘positive
law. . In the ﬁrst place, there are some principles
which are ﬁrmly established in the belief of the
people, others which are but slightly realised; while,
then, the former have a substantial existence of their
own, and merely require external acts for their ex-
pression, the latter can hardly be said to exist at all
1 System, sec. 12. ~ 2 Pandektenrecht, sec. 15.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 281
unless they are displayed occasionally in outward act.
Thus, “in order to have a clear and distinct conscious-
ness of these principles, the people themselves must
see them often applied, and this necessity makes itself
the more felt with a people as the creative force of
law is developed among them with less and less
energy.”1 In the second place, there are certain parts
of positive law which must necessarily be left to a
mere arbitrary decision: when we want to ﬁx the
number of years for prescription, we cannot say that
one number rather than another recommends itself to
the general wish. There is a tendency, then, in such
a case as this to select some one number in the ﬁrst
instance, and follow it afterwards merely for the sake
of consistency.
In such cases our previous judgments and decisions become
authorities for us, and in this sense custom is one of the elements
of law: here we have the operation of the rule of continuity in
opinions, in acts, and in circumstances, a rule which still exercises
a great effect upon various matters of law.2
Custom, therefore, is always a sign of positive law,
and is sometimes an element in its formation. This
being recognised, there are two ways in which its
existence is made prominent ; by symbolical acts, and
by judgments on decided cases. The one constitutes
the pictorial apparatus by which a people impress
their customs on their own mind: the others are
decisive opinions upon the existence of custom, arrived
at by persons having‘ full opportunity for enquiring
into it. But though a Right, when thus decided on
i 1 System, sec. 12. 2 I bid.
282 THE NATURE OF POSITIVE LAW. [XII
and applied, assumes a certainty it may have wanted
before, yet it can do so only in the eyes of outsiders.
To the people themselves Custom exists as Law quite
independently of any application of it. “ It is a
reality of which they are directly conscious.”1
2. Legislation.
So far Savigny has regarded Law as springing
solely from the wants of the people, and as decided
spontaneously by these wants. In advancing now to
Law as settled by Legislation he does not leave this
position, but he founds the necessity for the change
upon the superior-facilities thereby afforded for know-
, .ingandInaintaining the Law.
When positive law has attained the greatest degree of evi-
dence or of certainty, we might still try to evade it through
ignorance or evil design. It may, therefore, be necessary to give
it an external mark which places it above all individual opinions
and facilitates the repression of injustice. Positive law, trans-
;lated by language into sensible characters and clothed with
absolute authority is called law, and the making of law is one of
the noblest attributes of the supreme power of the State.2
From this it follows that Legislation originally
concerns itself only with existing law. “ In other
words, a statute is the expression of popular law :” 3
and to obviate the objection that they frequently pro-
ceed from authorities who seem to have little enough
connection with the popular wants, Savigny is bound
to assume that the Legislator is forced by circum-
stances to express the wishes of his age.
1 System, sec. 12. 2 Ibiol. sec. 13. 3 I bid.
xII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 283
To doubt this it would be necessary to conceive of the legis-
lator as standing outside the nation; but, on the contrary, placed
in the centre of the nation, he reﬂects its spirit, its opinions, and
its needs, and must be regarded as the true representative of the
national mind.1 ‘
We need not pause here to discuss how far this
picture of Law conforms to actual facts. This is the
function which Savigny assigns to it; whether it is
to be adopted as a working hypothesis is another
matter. But lest he should seem to assign to Legis-
lation too slight a part, he proceeds to show the im-
portance of the functions it has to perform. These
are of two kinds, it has to complete the positive law
and to aid in its progressive development. Thus I
have already pointed out that there are many matters
which are with difﬁculty determined by custom, and
that here there is a tendency to adopt an arbitrary
decision in the ﬁrst instance and follow it afterwards
for the sake of case. In these matters it is obviously
better to have the ﬁrst case decided in a _more com-
petent manner, and they are therefore a proper sub-
ject for Legislation. But the part which it has to
play in assisting the development of Law is still more
important. This cannot be better described than in
Savigny’s own words.

When the change of manners, of opinions, and of needs re-
quires a change in the law, or when the progress of time calls
for new institutions, these new elements may be furnished by
that invisible force which created positive law. But here, above
all, the intervention of the legislator appears as beneﬁcial and
even as indispensable. As the different causes of which I have
1 System, sec. 13.
284 THE NATURE OF POSITIVE LAW. [x11
spoken act only slowly and by degrees, there is necessarily a
time of transition in which the law is uncertain, and it is to put
an end to this uncertainty that Statute Law is required. To
take another point of view also: the different institutions of law
are connected with and react upon each other ; every new prin-
ciple may, therefore, without our being aware of it, contradict
other principles which are not meant to be impugned. To
smooth away these difficulties, we require calculations and
combinations which are hardly possible save by way of personal
action.1
It is clear again that when we wish to abolish a
principle that has been settled by statute, it is much
more convenient to do this by way of statute also ;
for even though Custom be permitted to abrogate
Statute Law, yet it is clear that it must ﬁrst acquire
a high degree of precision and force. The difficulty
of deciding whether this has been attained is easily
removed by passing a repealing statute.
It is curious that Savigny appends to this, as a
remark which must indeed be made, but which de-
mands little attention, the fact that Legislation often
has to usurp the whole domain of Customary Law.
Lastly, we see in the history of all peoples epochs when cir-
cumstances do not permit of law springing directly, as in primitive
times, from the common consciousness of the people ; it is then
that the legislator takes charge of a work which cannot long re-
main interrupted. Never has the change been effected in a more
visible and sudden manner than under Constantine, and starting
from his reign, Law was continued only by the numerous decrees
of the emperors.2
It is obvious at once that this case is really one of
such importance in actual life, that Austin, in found-
P‘i'ng his system, paid attention to no other. All
. 1 System, sec. 13. 2 Ib’id-
xII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 285
law he ascribed directly or indirectly to Legislation,
and refused admittance entirely to that law, testiﬁed
by custom, to which Savigny attaches such import-
ance. The importance, indeed, which Legislation
tends to acquire at the expense of Customary Law is
expressly recognised by more recent writers. Thus
Windscheid remarks that the development of Legisla-
tion necessarily thrusts Custom into the background,
and that as legal relations increase in complexity, and
the differences between individuals become more and
more marked, Custom, save in so far as it takes the
shape of Scientiﬁc Law, must abandon the ﬁeld to
Legislation. “ Thus, for modern times, Legislation is
practically by far the most important source of Law,
though it is not the ﬁrst in order of time.”1 But as
I have just remarked, Custom, instead of giving way
entirely to Legislation, may make room for Science
to take its place. This will lead us to consider the
position and functions of Scientiﬁc Law.
3. Scientiﬁc Law.
In course of time, as human relations increase in
complexity and rules of law in number, it becomes
impossible for the latter to subsist any longer in the
consciousness of the people.

Then we have the formation of a special class, that of the
J urists, who represent in the domain of Law the people of whom
they form a part. This, however, is merely a new form under
which popular Law pursues its development, and from this time
1 Pandelttenrecht, sec. 15.
286 THE NATURE OF POSITIVE LAW. [XII
it has a double life. Its fundamental principles subsist always
in the consciousness of the nation, but their exact determination
and points of detail in their application belong to the province
of the Jurists.1
It is in such a change that we have the origin of
legal Science, and this now appears under two aspects :
tit has its theoretical side and its practical side. The
theory of Law is concerned with the gradual produc-
tion of rules: the practice of Law with their appli-
? cation. The former is the special work of the J urists,
,the latter of the Judges, though these functions are
not always conﬁded to different persons. The work of
the J urists, again, is of two kinds : they create new law
and they arrange existing law. The former function
they exercise in virtue of their position as representa-
tives of the legal interests of the people; thus law
created by the J urists corresponds to the law created
by the common wishes of the people as testiﬁed by
general customs at an earlier date. “ The latter func-
tion is purely scientiﬁc, for they take up the law,
whatever may be its origin, in order to reshape it and
reduce it to a logical form.”2 It must be noticed,
however, that this has no slight inﬂuence upon the
substance of the: law itself. This fact Savigny ex-
presses as follows :—
The scientiﬁc form which the J urists impress upon the law,
tending, as it does, incessantly to develop and complete its unity,
reacts upon the law itself, gives it a fresh organic life, and thus
Science becomes a new element in the making of law.3
This comparison, which the Germans are so fond of
instituting, between social institutions and the forms of
1 System, sec. 14. 2 Ibid. 3 Ibicl.
x11] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 287
organic life, is one that so far has been hardly applied
to the province of Law by English J urists. But it is
clear that if we can once conceive of Law as a whole,
whose various parts, while they have their own special
functions, have yet a strong inﬂuence upon the other
parts, we shall realise what Savigny means when he
speaks of legal Science as completing the unity of the
Law. To such unity Law can never attain except by
the help of Science; the organic connection between
the parts, however it may exist in reality, can never
become operative until Science has deﬁned the func-
tions and position of each part. But when this has
been done, we at once see what parts are defective
and where Legislation is most required. It is in this
sense, then, that the merely scientiﬁc, or, to speak more
correctly, merely logical functions of the J urists has
an inﬂuence on the creation of law ; it does not
directly create, but it points out the way which Legis-
lation, and which Science, by virtue of its creative
function, must take in the formation of new rules.
Savigny passes on to notice a possible danger which
is connected with this function of Science. But in
following him we must distinguish carefully between
the different objects which a Jurist may have in view
in enunciating a rule of law. Thus, he may do it
either with a view to making new law, or with a
view to expressing existing law. It is to rules of the
latter kind that Savigny now refers, and it is to these
that the passages he quotes from the Digest also refer.1
He points out, indeed, that the enunciation of the rule
1 Vide supra, p. 242.
288 THE NATURE OF POSITIVE LAW. [XII
tends to confuse its real purport; it is supposed to
have some inherent virtue of its own, whereas it is
merely an attempt, more or less successful, to express
the law. Hence a judge must only apply it so long
as this is the best expression of the law of which he
can avail himself. It is here that Savigny sees the
dangers of complete codes; these clearly purport to
consist only of rules of the latter kind. “They ﬁx
the law in the state in which they ﬁnd it, they make
it immutable, and so deprive it of the successive
ameliorations which the progress of Science would
naturally bring to it.”1
It is necessary, in the last place, to examine the ~
relation which Science bears to Legislation. This is of
a twofold nature; I have pointed out that Scientiﬁc
Law is the natural successor of Customary Law, hence
Legislation must lend its assistance to the former, just
as it did to the latter. Now, in the case of Customary
Law, the assistance was of two kinds. Statute law
gave precision where precision was wanting, and de-
cided between rival opinions where unanimity did
not exist. The ﬁrst kind of help is not wanted in
Scientiﬁc Law, the second is. Here, then, we have the
true province of Scientiﬁc Law in its creative function
marked out. Where there is unanimity among J urists,
jtheir opinions create law ; where there is no such
unanimity, Legislation decides between them. In this
latter case Scientiﬁc Law provides, like Customary
Law, the appropriate matter for Legislation to work
upon.
1 System, sec. 14.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 289
But Science has a more intimate connection with
Legislation even than this ; it has what we may call
a personal inﬂuence upon it. Thus, not only do the
J urists supply the subject-matter for law, but when
this has received the approval of the Sovereign power—
that approval which stamps it as Statute law—it again
passes to them before it is capable of application. It
is their function to interpret the laws, and it is per-
mitted to them to add such explanatory matter as
cannot well be introduced by the legislator himself.
“ And so the labours of science facilitate the applica-
tion of the law and ensure its empire.”1
It may be worth while to quote further the pass?
age in which Savigny justiﬁes the prominent position
which he assigns to the J urists.
We see, then, that the J urists have a very extensive inﬂuence
upon- positive law. Those who repudiate this inﬂuence as an
unjust pretension would be well founded in their criticism did
the J urists form an exclusive caste. But as any one may become
a Jurist by going through the necessary studies, their pretension
merelyamounts to this, that he who consecrates to the Law the
work of his whole life, shall be allowed by reason of his know-
ledge to have a more extensive inﬂuence upon the Law than
other men,2
Finally, we must not suppose that Scientiﬁc
Law cannot exist until the legal wants of the citizens
make it absolutely necessary. Its rise depends upon
special circumstances as well as upon necessity, and
these may either accelerate or delay its actual ap-
pearance. Thus its appearance is accelerated when
the knowledge of rules of law is at an early period
1 System, sec. 14. 2 I bid.
‘ U
290 THE NATURE or POSITIVE LAW. [x11
conﬁned to a special caste, and when the consciousness
which these have of the Law is allowed to take the
place of that consciousness which should reside in the
people.
So far I have stated the views of Savigny only on
the position and functions of Scientiﬁc Law ; but the
question is one of so much interest and importance
that it may be worth our while ‘ to examine it more
carefully. It is generally admitted that the work of
the J urists is, as he says, of two kinds—logical and
creative. We will consider these in order.
A Jurist, when he has a given collection of laws
presented to him, has ﬁrst to arrange them in syste-
matic order. This will reveal to him the defective
parts, and he may then attempt to ﬁll the gaps in
two ways—either by deducing new rules from estab—
lished principles, or, if this will not suffice, by creating
new law. With the latter mode we are not at present
concerned, but the former is a part of the logical
function of Jurisprudence. If, then, we enquire what
is the basis upon which such rules rest for their
validity, we ﬁnd that they depend solely upon the
correctness of their deduction from settled principles.
Hence prevailing opinions as to their validity, and
the previous practice of the courts, are only pre-
sumptive evidence of such correctness, and any judge
who is convinced of an error in them is at liberty to
apply the rule in what he conceives to be the correct
form.1
If, in the next place, we turn to the creative
1 Puchta, Pandektenrecht, sec. 16.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE._ 291
function of science we ﬁnd more difficulty. There
has been an opinion that new rules, logically obtained,
do not owe their validity to any connection with
established principles, but that they may be deduced
from Natural Law. This, however, has a tendency
to render them unsuitable for application in practice,
and the opinion is now generally abandoned. If,
then, J urists are not to make new rules at pleasure
and in accordance with Natural Law, and if, as is
admitted, they do make rules of some kind, what is
the nature of these rules, and to what do they owe
their validity? This is a question which has excited
much interest, and which has been specially discussed
in reference to the introduction of the Roman Law
into Germany.1 Thus, it being admitted that the
people are the ultimate authors of all‘ law, new rules
propounded by J urists may hold good on one of two
grounds, on the ground, viz., that their authors ex-
press in a form suitable for application ideas and
wishes which actually exist in some vague manner
among the people; .or on the ground that they have
sentiments and views upon legal matters which corre—
spond generally to the temper and disposition of the
people, and so make them suitable to be its repre-
sentatives. Upon neither hypothesis, indeed, can the
introduction of the Roman Law be justiﬁed as a
national act, for neither people nor J urists had direct
knowledge of all the rules which it contained. As I
have already pointed out, its introduction can only be
regarded as a fact due to the peculiar circumstances
1 Vide supra, p. 256.
292 THE NATURE OF POSITIVE LAW. [XII
of the Middle Ages. The true function of the J urists,
as representatives of the people, lies in choosing and
adapting such portions of it as are really suitable for
popular use, and in thus converting 'it from a foreign
to a native system.1
Certain‘ parts, indeed, of the law which is created
by J urists are of so technical a character, that there can
be no question of the people having any direct ideas
on the matter. Of this nature are the rules which
form the practice of conveyancers. But if we are to
allow to J urists any power at all of creating new
rules, it must be on the ground that they are specially
ﬁtted to represent the wishes of the people in legal
matters, and admission to their number must be so
arranged that these wishes shall always be likely to
ﬁnd adequate expression among them.
It will be useful new to recapitulate the various
functions of Scientiﬁc Law.
1. Logical.
a. It arranges the whole Law in a scientiﬁc
manner, and exhibits its leading principles.
I). In doing this it discovers many gaps, and
ﬁlls these up as far as possible by deducing
suitable rules from existing principles. The
validity of these rules depends upon the
correctness of the deduction, unless they are
afterwards ratiﬁed by custom. Such custom
may be signiﬁed by judicial usage, and hence
arises the binding nature of Case Law.
1 Windscheid, Pandektenrecht, sec. 10, note 4.
XII1 MODERN GERMAN SCHOOL OF JURISPRUDENCE. 293
2. Creative.
a. It creates rules upon special technical mat-
ters ; this it does because they are questions
with which only experts are capable of
dealing.
b. It creates new rules in matters where the
wishes and interests of the people require
it, and where there is practical unanimity.
This it does because its professors are quali-
ﬁed to represent the people, who in former
days would themselves have effected this
change by a change of custom.
Having thus examined in detail the three sources
of Law,-—Custom, Legislation, and Science—Savigny
next proceeds to consider how their various functions
are combined so as to produce a harmonious unity in
the law. The result at which we have arrived is, that
all positive law is in its origin popular law, but that
Legislation is often necessary to assist it and to
supplement it. When in the course of time Science
is rendered necessary, this merely continues in the
most convenient way the work of popular law. But
often the people lose the power of originating law alto-
gether :‘ we must then look for legal changes to the two
other organs, Legislation and Science; and not only,
indeed, do changes in the law now proceed from‘these
sources, but as Customary Law is often produced
over again by one of them, its true origin is forgotten,
and. thus it ceases to be looked upon as an actual
source of law. The following remarks are worthy of
294 THE NATURE OF POSITIVE LAW. [XII
attention from the comparison they suggest with
Austin’s system :—
Legislation, owing especially to its external authority, has
such a preponderance ‘that we are easily led to regard it as the
only source, properly so called, of law, and to see in all the rest
only secondary and supplementary sources. But law exists in
its proper state there only where we have a harmonious agree-
ment between these various forces that create it, and where
none of them is isolated from the others; and in order that
Science and Legislation, the origin of which is essentially separate,
may not work merely by chance, it is important that the Legis-
lator and the Jurists should have sound ideas upon the origin of
positive law, and upon the relation of the different forces which
produce it.1
So far, it will be noticed, there has been no attempt
to formulate any principle of legislation. Everything
is founded ultimately upon custom, and the province
of Statute Law has been restricted to expressing or
supplementing this. It is possible, however, in the
following remarks of Savigny to discover something
approaching an attempt to establish Legislation upon
a more independent basis. Thus he proceeds to draw
a distinction between the two elements in Customary
Law, “ the one individual and peculiar to each people,
the other general and founded upon the common
nature of humanity.” 2 It is from this circumstance
that two schools have arisen in the study of Law ; of
these one is careless as to the principles upon which
Law is founded, and, regarding them as merely acci~
dental, is content to busy itself with the actual forms
in which they are expressed; the other considers that
there are principles of Law which are founded upon
1 System, sec. 15. 2 I bid.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 295
absolute truth, and that it is to these that all par-
ticular systems ought to conform. “ The latter reduces
law to an abstraction without life, the former mistakes
the dignity of its vocation.”l Savigny attempts to
reconcile these two schools by pointing out that the
one represents an end to which the other should strive
to attain. He says: “ We avoid this double error by
assigning to Law a general end which every people is
called upon to realise historically.” 2 To an English
jurist it is clear that this general end is to be found
in the principle of Utility, but it is important to
understand clearly the meaning which Savigny assigns
to it. Thus he says, “ The general end of Law is to‘
be found in the moral law of ‘man from the Christian
point of view.” 2 The ﬁrst objection to this, of course,
is that it is transplanting Religion into the sphere of
Law. A more minute examination, however, will show
that this objection must not be entertained too hastily,
for the inﬂuence of Christianity, so far as Law is con-
cerned, is limited to laying down a principle of morality,
and not deﬁnite rules. Thus——
Christianity does not pretend to be merely a rule of our
actions ; it has, in fact, modiﬁed humanity itself, and it is found
at the base of all our ideas, even of those which seem to be most
foreign and most hostile to it.‘1
There seems,'indeed, to be nothing here to which
even the strictest Utilitarian can take objection. Strip-
ping Christianity of all those portions which it would
be improper to introduce in this place, we may say
that its main object was to enforce that portion of
1 System, sec. 15. . 2 Ibid. 3 Ibid.. 4 I bid.
296 - THE -NATURE OF POSITIVE LAW. [X11
the principle of Utility which most needs enforcing.
This latter principle requires that the object of social
action, and therefore of Law, which is one form of
social action, should be the attainment of the greatest
good for the greatest number. It recognises that, as
a rule, this object is best attained when each individual
devotes his energies to his own advancement ; at the
same time, he must be ready to sacriﬁce this whenever
the good of the community requires it. The former
injunction needs no teacher of morality to enforce
it; the latter represents a principle which was long
struggling for expression, and which at length found
it in the teaching of the Founder of Christianity. Its
necessity, indeed, has been recognised in the only
systematic attempt that has yet been made to estab-
lish a new religion, and however Positivism may
repudiate the pretensions of Christianity, it is at least
indebted to it for the principle of Altruism upon
which its whole existence is founded. The function
of Christianity, moreover, is not only limited to
making the principle of Utility applicable in prac-
tice; it, is by its light also that the fundamental
formula is interpreted. The two terms of this are
“ greatest good” and “ greatest number ;” but the
former is almost universally repudiated unless it
includes the individual happiness which results from
a consistent application of the altruistic principle;
and the latter would certainly not be construed to
mean all men of all nations but for the inﬂuence
Christianity has had in breaking down the barriers
between man and man. However much these re-
x11] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 297
marks may to some appear out of place, it seemed
necessary to make them in order to discover the germ
of truth which exists in Savigny’s account of the
object of law. We thus see that he means no more
in reality than Bentham, though he gives a form to
his opinion which, at ﬁrst sight, implies a great differ-
ence. ‘Bentham enunciates the principle of Utility ;
Savigny points to certain well-known rules of morality
which are necessary to the working of this principle,
and which, to the impartial mind, are indicated by
the word Christianity. The latter justiﬁes here, as
elsewhere, his claim to belong to the historical school
of Law. His view is not inconsistent with that of
Bentham, it is merely more concrete. Each of them
recognises the two motives to human action, the
selﬁsh and the altruistic. Bentham, however, starts
with an abstract principle and derives them both
from this: if, moreover, he were asked how he pro-
posed to attain their realisation in life, he would
probably say, the ﬁrst realises itself with tolerable
ease; the second has had, and now has, a hard
struggle for realisation, but one of the most potent
factors in its gradual victory has been the inﬂuence
of Christianity. Savigny, on the. other hand, starts
from actual life. Looking around him he sees that
the selﬁsh principle is often enough embodied in
legislation ; the changes that are required are mostly
upon an altruistic basis, and this is presented to him
in the form of Christianity. ‘The practical outcome
‘of each way of looking at Law is, so far, very much
the same.
298 THE NATURE OF POSITIVE LAW.‘ [XII
A similar view, though without the same direct
reference to Christianity, is put forward by Trendelen-
burg. Thus he says that “ Law strives to grasp the
4' special intention of moral relations, and regulates the
external conditions under which they can succeed.” 1
-This has, indeed, been preceded by an enquiry into
the nature of these moral relations, and it has been
shown that they have for their object the gradual
development and improvement of the Whole and of
its individual members. There is, indeed, a curious
distinction between the tests which the German and
the English schools assignfor Law. Bentham sepa-
rates Law from Morality, and proposes as its test the
principle of Utility. 'Against this the objection lies
that it seems at ﬁrst sight, at least, to neglect those
higher ethical advantages upon which the welfare of
man chieﬂy depends. Trendelenburg does not recog-
nise any such distinction between Law and Morality,
but asserts that Law is something added to Morality
for the sake of carrying out its intention. So, too,
Savigny will not allow of any lower object being
associated with this. Thus he says :—
This end is quite sufﬁcient for Law, and it is useless to add
to it another, and quite a different one, under the name of the
public good, and to place by the side of a principle of Morality
a principle of Political Economy. In fact, Political Economy,
seeking to extend our empire over external nature, can only
wish to multiply and ennoble the means which lead to the accom-
plishment of the moral destiny of man, but that does not con-
stitute a new end.2
The same idea is expressed by Trendelenburg
1 Naturrecht, p. 75. 2 System, sec. 15.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 299
when, in replying to the objection that his deﬁnition
of the object of Law leaves out much that is im-
portant, he says that “ body and limbs, life and
health, are conditions for Morality, and their protec-
tion falls easily under the deﬁnition.” 1
We thus see that Bentham proposes a test for Law:E
which may or may not be one for Morality also, while "
the Germans establish their rules of Morality ﬁrst,
and then charge Law with the function of facilitating
the performance of them. It may be remarked, too,
that while Bentham enunciates the principle of the
greatest good of the greatest number, he seems to
neglect the individual; the Germans are careful to
recognise expressly that Morality consists in the
adjustment of the claims of the individual with those
of the Whole.
According to the view which we are here consider-
ing, Law has for its object the preservation of the
external conditions for the realisation of Morality.
Apart from the fact that this may sometimes require
the use of force, which I shall consider later on,
the real meaning of it is, that rules of law are
necessary in order to show how rules of morality can
be observed. This idea is brought prominently for-
ward by Savigny, though it is doubtful whether he
sees its real signiﬁcance, when he is considering the
difference between Rights to one’s own person, and
Rights over property and over other persons. He
says that the former need not be recognised in positive
Law, and that the rules which govern them are
1 N aturrecht, p. 91.
300 THE NATURE OF POSITIVE LAW. [XII
wrongly placed on the same line as the rules which
govern other Rights.1 But what he really means is,
that security to the person is sufficiently protected by
rules of morality, and nothing more need be added
to these for any one who is ready to observe them;
while rules relating to property and contract must
necessarily be laid down by Law before the rules of
morality which concern these matters can be observed.
To this point I shall return later on.
We have thus discovered what is, according to the
German view, the test of Law, and what is the relation
which exists between Law and Morality. At the
same time, it cannot be denied that Law, as it actually
exists, is sometimes opposed to rules of morality, and
sometimes fails to carry them out perfectly. Hence
the jus strictum, or ratio juris, must continually try
to adapt itself to the real wants of men, or, using the '
old terms, to the requirements of oequitas, or naturalis
ratio. This leads us to consider the methods in which
equity strives to alter the law, and as I have already
made some remarks on this subject, it will be useful
to consider the manner in which Savigny treats it.
According to him, then, the action of equity upon
law is exerted in the following ways :— I
1. Equity strives to alter the strict law directly.
II. Equity strives to inﬂuence it indirectly.
1. When moral considerations are allowed to inﬂu-
ence law, as inallowing weight to boni mores.
2. When the interest of the State is concerned.
(publica utilitas, quotl reipublicee interest).
2 1 System, sec. 53.
XII] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 301
3. When special precautions are taken in favour
of particular matters or particular persons
(ratio utilitatis) ; hence the special rules for
trade and for the protection of women and
minors.
Thus we may distinguish two kinds of Law.
1. Law which exists independently, and, so to
speak, in its own right; whether it be the
old jus strictum, or whether it has been
modiﬁed to meet the requirements of equity.
2. Law which is modiﬁed in practice by other con-
siderations, which do not properly belong to
‘its domain, such as boni mores, and the
various kinds of utility.
It will be noticed that this division corresponds
with what was said in the second chapter as to Law
and Equity. In the ﬁrst class we have both the
original rules of law and those which have been
placed on a broader basis so as to include temporary
rules of equity. In the second class we have per-
manent rules of equity.
But though a goal to which all legislation must
tend has thus been found, yet the facts of human
life render it necessary to observe much caution in
approaching it. 1 On this matter we have the follow-
ing interesting passage :—
The existence of the two elements of positive ' law once re-
cognised, the special element and the general element, a new
career is opened for legislation. In fact, as the progress of law
302 THE NATURE OF POSITIVE LAW. [XII
depends upon the reciprocal action of these two elements, the
legislator must keep the general end before his eyes and con-
stantly approach it, but at the same time he must do no pre-
judice to the energy of individual life. Thus many gaps present
themselves to be ﬁlled up, many obstacles to be removed, and the
legislative authority may lend the happiest assistance to the
insensible action of the popular spirit. But we can never be too
much on our guard against arbitrary action and against exclusive
views, for fear of stiﬂing the life and the progress of Law.
Here, above all, the legislator must be able to appreciate true
liberty, and it is here that we often see the greatest deﬁciency
in those who have the name of liberty always in their
mouth.1
Savigny concludes his remarks upon Law in gen-
eral by a consideration of certain distinctions between
diﬂierent kinds of laws. The only one to which we
need advert here is that between law properly so
called, and rules which hold good only as exceptions;
the latter form the subj cot-matter of that jus singulare
which I have elsewhere described, and which has just
been referred to. Decisions in accordance with rules
of law proper are said to be according to the ratio
legis; those in accordance with the other class of
rules against the ratio legis. I have already pointed
out that a rule of jus singulare is merely an attempt
to adapt the law to the necessities of actual life, and
hence it is derived from a direct appeal to utility.
We must notice, further, that Savigny recognises that
twofold destiny which we have seen to await such
rules. They may either remain permanently outside
the regular law, as exceptions to it, or, in course of
time, they may become incorporated into its sub-
1 System, sec. 15.
x11] MODERN GERMAN SCHOOL OF J URISPRUDENCE. 303
stance. This distinction seems to be implied in the
following passage :—
From what precedes we see that the jus singulare is general
and not historical in its character. It may, however, assume the
latter form, if the principle which is at ﬁrst foreign to the law
ends by becoming assimilated to it, and if what was at ﬁrst
utilitas becomes in course of time ratio juris.1
For an example of this he refers to the doctrine of
acquisition of property by means of free persons.
Before leaving this point we may notice that the
German writers fully recognise that there is a sphere
in which Law must not seek to interfere with Morality.
Thus Law is concerned in general with the Whole, not
with the Individual. So Trendelenburg says :—
- It is important to recognise what the Law cannot and ought
not to determine. Since it is applied to the community it
withholds itself in general from all that belongs to individual
morality.2
We have already seen how Savigny compares the
Law to an invisible line drawn round every man,
deﬁning for him the province of his Rights. “In
this,” he says, “ is revealed the mark which shows at
once the resemblance and the distinction between Law
and Morality. Law serves Morality, not by accom-
plishing its precepts, but by assuring to the individual
the exercise of his free will.” 3 We must notice,
indeed, that the word morality is here used to denote
character, not a system of rules, and the distinction
is important. Law, as we have seen, does assist
many rules of morality by ensuring their observance
1 System, sec. 16. 2 Naturrecht, p. 81. 3 System, sec. 52..
304 THE NATURE OF POSITIVE LAW. [XII
as well as by making this possible; but Law itself
rests ultimately, like the rules of morality, on the
character of the individual. Hence it is wise for it
to abstain from interfering with the individual too
much, not only because it has to consider chieﬂy the
interests of the community as a whole, but also
because it is only by allowing freedom to the individual
that the robustness of character on which all Law and
Morality depend can be formed.
We have now to consider certain elements in Law
which, though they do not appear in the deﬁnition,
are yet necessary for its existence. We have seen
that it is deﬁned as a rule of actions, and we have
seen how these rules are made; but we have still to
discover how they are ascertained and enforced in any
given case, and this will lead us to discuss the judicial
and the penal functions of the State. We start
from the position that the ﬁrst object of Law is to
lay down rules by which Morality current
Morality) can be carried into practice. Thus, the
rule of morality which forbids theft is useless unless
rules are laid down which shall govern the devolu-
tion of property. But when we come to apply these
rules differences of opinion may arise, and it is for
the settling of such diﬂ‘erences that civil courts are
established. It is important to grasp clearly the dis-
tinction between deciding a contested case and enforc-
ing a rule of morality ; it has, indeed, been expressly
noted by Bethmann-Hollweg. Thus he points out
that there are two cases in whichthe State is called
on to intervene by its judges: ﬁrst, where there is a
x11] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 305
direct revolt of the individual will against the general
will, or against the Law, i.e. where there is a crime, a
conscious violation of the Law itself; in this case the
business of the judge is merely to pronounce udgment
and award the proper punishment: secondly, where
the Right of one individual is encroached upon by
another ; here there may be no intention of violating
the Law itself, but rather it is to this that each of the
individuals appeals; we have here a contest at law,
and we only want a decision as to the rule which is
to govern it.1
We thus see that the possibility of making use of
.Law at all requires that there should be proper means
of determining it. This, then, may be said to ﬂow by
way of necessary deduction from its deﬁnition. Must
we, however, say the same of the Force which is some-
times necessary to ensure the performance of the Law,
in other words, is the Sanction a necessary element in;
it’? This is denied by various authors, because the
existence and the utility of Law can be conceived
without any such element. This, indeed, may seem
strange to an English reader, but of the fact there is
no doubt. Thus, as I have before remarked, Savigny
regards it as a sign of malady if Force has to be
brought to the help of Law, and refuses to found the
State as many do upon this idea. “According to these
authors,” he says, “ the State is a coercive force, which
we might do without if all wills were ruled by justice,
while, in my opinion, the State would then shine with
fresh lustre and power.”2 Windscheid, who in gen-
1 Der Rﬁmische Civil Prozess, i. 19. 2 System, sec. 52.
x
306 THE NATURE OF POSITIVE LAW. [XII
eral follows Savigny, speaks in the same way ; thus,
after stating that a Right consists in a certain power
of ruling the wills of others, he remarks—
That the State must, when necessary, confer validity on this
power and dominion, follows directly from its task as guardian
of legal order, but does not necessarily belong to the idea of
Law.1
Trendelenburg, although he recognises the real
necessity of Force, and goes so far as to say that Law
I is merely Morality supported ‘by Force, yet is careful
to point out that in a community of just men, although
every one were wishful to keep within the limits of
the Law, Law itself would still be necessary. The
noblest explanation, he says, leans that way, and
thus we see that Force is no essential constituent
element in the idea of Law, but is introduced as a
mark of the second order.2
It is important to grasp clearly the view of Law
which is thus set before us. The rules of morality
rest ultimately upon the assent and practice of the
people; upon the same assent, then, do the rules of
law, which are merely explanatory of the rules of
morality, rest. Thus Law is a rule intended to secure
vithe observance of Morality, and resting, directly or
indirectly, on the assent of the people. This assumes
‘that there shall be organs for declaring it generally
(Legislation in its various, forms), and organs for
declaring its application in particular cases (Courts of
Law). So much is necessarily implied in the idea of
Law. But we have also to face the fact that the wills
1 Pandektenrecht, sec. 37; 2 N aturrecht, p. 90.
x11] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 307
of individuals are not always in accord with the will
of the community. Thus Savigny says :—
Every individual may, in virtue of his liberty, act in opposi-
tion to the idea and the wish manifested by him as a member of
the nation. This opposition is injustice, or the violation of the
law, and it must be repressed if we wish to preserve for Law its
empire and existence. In order that this repression may not be
the work of chance, in order that it may be executed in a regular
and certain manner, we require the intervention of the State.1
The same is, of course, asserted by Trendelenburg,
who bases the idea of Law on the maintenance and
preservation of the Whole together with its association
of members. Thus both the obligation on the mem-
bers to acts and omissions, and the compulsion which
dwells in Law, spring from the same source, or, as he
says :—
Since the members as members, and men as moral agents,
have their position only in the Whole, so, on their part, are they
bound to services by which the existence of the Whole is possible,
and they are bound to omit what will destroy the necessary
union. To this obligation of the members corresponds, if it is
not fulﬁlled, the compulsion of the Law, which springs from the
moral power of the Whole over its members, and is regulated in
accordance with the aims of morality. Compulsory Law pre-
serves in the ethical association the endangered co-operation of
the parts.2
In the face of the actual Force existing in the
world as a part of Law, it may seem superﬂuous to
justify its use in this way, but we must remember
that we are dealing with a theory of Law radically
different from that prevalent in England. We have
here, ostensibly at least, no sovereign and no subjects ;
we have merely the union of individuals in one
1 System, sec. 9. 2 Naturrecht, p. 76.
308 THE NATURE OF POSITIVE LAW. [XII
Whole," which is regulated by Law. In general, Law
is observed by the members willingly; when this is
not the case, Force must indeed be employed : but it‘ is
not enough to say that the Sovereign is in a position
to. use it, and‘ therefore he may do so ; we must have
reasons, based on the constitution and objects of society,
which shall justify this compulsion of one member by
the rest. In, this theory, as I have already remarked,
we do not speak of a Sovereign, but of the State, and
the State is merely an organ for expressing the will
of the people. There is at least this advantage in
seeking a justiﬁcation for the use of Force, that we
~ discover at the same time that it is not to be a mere
blind repression, but a compulsion nicely adjusted to
the end we have in view. There are, indeed, many
reasons for encroaching no further than is absolutely
necessary on the freedom of individuals, and this
introduces once more a consideration to which I have
already referred.
If we regard compulsion as existing in the service of that
moral Whole which ﬁrst completes itself in its moral members,
and if, further, the condition of individual morality is freedom
in individuals ; then will compulsion, instead of being rude force,
limit itself to the smallest possible proportion, and seek such a
one as shall be most conducive to morality.1
I have now stated enough to give an idea of the
theory of Law, which has been held by eminent Ger-
man J urists. I shall abstain from further comment
on it till I have reviewed other theories also, but it
may be as well to sum up brieﬂy its leading points. 7
1 Trendelenburg, N aturrecht, p. 90.
xI1] MODERN GERMAN SCHOOL OF JURISPRUDENCE. 309
Man cannot be regarded as an individual existing
in isolation: he is a member of society, and as such I
he must be treated. But if we survey the constitution
of society, we see everywhere the individual trying to
obtain as large a province as possible for the exercise
of his will. In order to assign such a province deﬁ-
nitely to each, and to prevent continual collisions, we
require, in the ﬁrst place, rules of morality. These
are intended to advance the highest interests of the
1 Whole, and of the Individual, and the essential point
in them is, that they are few,universal, and well known.
To supplement them, however, and to adjust the in-
ﬁnitely complicated relations of human life, we must
have, in addition, rules of law. From this it follows
that there must be proper organs for making the law,
for deciding the law, and, if necessary, for enforcing the
law, or rather for adding a penal sanction to the rules
of morality. For this purpose the State is formed,
and acts as the representative of the people. Some-
times, however, the people act directly, as in making
Customary Law, or indirectly through other repre-
sentatives, as when Law is made by J urists. But in
general the State acts for them in its legislative,
judicial, and sanctioning capacities. The latter two
capacities give rise to the law known as Civil and
Criminal Procedure, together with Criminal Law. - All
these, as well as the great body of the law, are framed
by Legislation; and it is important, then, to deﬁne the
object which Legislation must have in View. We
have seen that it must have a general idea of the
principles on which morality is founded, and that it
"ISL/j
310 4
qlwn/ THE NATURE OF POSITIVE LAW.
[x11
miist arrange the external conditions on which these
principles can be carried into practice, remembering
at the same time that the possibility of morality
existing at all depends largely upon the amount of
freedom which is left to the individual.
I may once more remark that I do not mean to
imply that these ideas on Law have universally pre-
vailed in Germany. They belong, indeed, to a modern
school. Spinoza grounded his system on force just
as much as Hobbes did, and Kant included compul-
sion as a constituent element in Law. It was the
special way in which Savigny looked at Law, as
arising by the assent of the people, and resting for its
validity on that assent, which made it possible for
him to see that Force was not essential to the idea of
5 Law, though it might be necessary for its realisation.
As I have already remarked, the most recent protest
against this has been made by Ihering ; and in con-
sidering, as I shall now do, the system of Austin, I
shall take occasion to point out the special views
which are held by this jurist—views which resemble
those generally current in England, though they by
no means coincide with them.
X111] THE ENGLISH SCHOOL OF J URISPRUDEN CE.
311
CHAPTER XIII.
THE ENGLISH scHooL or JURIsPRUnENcE.
IN the last chapter I have, perhaps, explained a theory
of Law which is not generally known to English
readers; if in the present, on the other hand, I am
passing over familiar ground, I only do so for the sake
of symmetry, and in order to secure a complete view
of the subject, before introducing the suggestions with.
which I shall close. I have already stated that the
fundamental distinction between the two schools is
that one treats law as a rule, emanating from the gen-f
eral will, and enforced where necessary by compulsion ; i,
the other treats it as a command issued by a Sovereign ,1
to a subject, and depending for its existence on his
superior might. This distinction is apparent at the
very beginning of Austin’s analysis, where he speaks
of laws in the following manner :—
Laws proper, or properly so called, are commands ; laws which
are not commands are laws improper, or improperly so called.1
Laws of all kinds, proper and improper, may be
divided as follows :— -

1. The divine laws, or the laws of God ; that is to say, the
laws which are set by God to his human creatures.
I Lectures on Jurisprudence, i. 82.
312 THE NATURE OF POSITIVE LAW. [X111
2. Positive laws ; that is to say, laws which are strictly and
simply so called, and which form the appropriate
matter of general and particular jurisprudence.
3. Positive morality, rules of positive morality, or positive
moral rules.
4. Laws metaphorical or ﬁgurative, or merely metaphorical
or ﬁgurative.1
_ It must be remarked, however, that of positive
moral rules some are really commands and therefore '
laws proper; others are not commands, and so only
laws improper.
Now, in considering the relation between similar
things, we have several degrees. Thus, there may be
a resemblance between them, or merely an analogy,
strong or remote. This, of course, simply means that
if we select one as the standard of reference and
enumerate its essential marks, the resemblance or
analogy of the others to it will be more or less strong
according to the number of these marks that they
contain. If, then, of the above kinds of laws we
select positive law as our standard, we ﬁnd that :—
1. Divine law, and some rules of positive morality
are related to it by way of resemblance.
2. Other rules of positive morality by way of
strong analogy.
3. And laws merely metaphorical by way of
slender analogy.
Since, then, positive laws are connected with these
other laws both by a common name and by possessing
common properties, it becomes necessary to distinguish
1 Lectures on Jurisprudence, i. 82.
XIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 313
between them. This, then, Austin proceeds to do, and
the method adopted for doing so is as follows :—
1. To determine the nature of all laws properly so
called.
2. To determine the marks by which each of the
laws of the above four kinds is distinguished
from the others. For this purpose they are
considered in the following order: laws of
God, positive moral rules, laws metaphorical,
and positive laws.
The ﬁrst of these processes determines what a positive
law is, the second what it is not. But the Science of
Jurisprudence is the Science of positive law; hence
the province of Jurisprudence is by this means deter-
mined both positively and negatively.
In - pursuing this course, however, Austin says
that it will be necessary not only to determine the
distinguishing marks of a law of God, but also to
discover the manner in which it may be known.
Hence his well-known examination into the theory of
utility as an index to the divine commands, into the
theory of a moral- sense, and into a theory which, he
says, is compounded of these two. In doing this he
wanders, according to his own confession, away from
the province of Jurisprudence, and attains thereby the
following two objects :—
1. He places upon an intelligible basis the ordinary
distinction of the J urists between the two kinds of
positive law, viz.—
i. Law positive, which is of human origin merely ;
this is equivalent to the Jus Ciiile.
314 THE NATURE OF POSITIVE LAW. [XIII
ii. Law natural, which is positive law founded
upon the law of God, and is equivalent in
general to the Jus Gentium.
This distinction, he shows, is only intelligible if we
assume as our test of Divine law that hypothesis
which is compounded of the theory of utility and
the theory of the moral sense.
2. But the second object is still more important.
It is true that Austin lays down in emphatic terms
that the province of Jurisprudence is conﬁned to
positive law as it is; but though he does not openly
confess the barrenness to which the Science is by this
restriction condemned, he does so tacitly by incor-
porating into the lectures peculiarly devoted to positive
law as it is, a whole treatise on positive law as it
ought to be. Not content with pointing out that a
consideration of the test by which the Divine law
may be known is the appropriate introduction to the
science of Legislation, he himself rushes off into this
tempting ﬁeld, and before he returns to what he
considers his proper task, he has established to his
entire satisfaction the principle which must lie at the
basis of the latter science. However, then, he may
repeat that Jurisprudence is concerned only with Law
as it is, we shall be safe in following the spirit rather
than the letter of the Master’s injunction. To justify
this course, indeed, he proceeds to deﬁne the various
departments of Ethics. Thus the science of Ethics is
concerned with Law and Morality, as they ought to
be, i.e. if they conform to the Divine law. But the
science of Law as it ought to be is the science of
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 315
Legislation; and though the science of Legislation, or
of Law as it ought to be, and of Jurisprudence or
Law as it is, are perfectly distinct, yet they are
connected by so many ties that one cannot be con-
sidered without the other.
Since, then, the nature of the index to the tacit commands
of the Deity is an all important object of the science of Legisla-
tion, it is a ﬁt and important object of the kindred science of
Jurisprudence1
It would be hard, perhaps, to express more clearly
the fact that we cannot separate these two sciences,
and that it would be more proper to take the word
Jurisprudence as including the consideration of Law
generally, both as it is and as it ought to be.
The general scheme which Austin follows out is
therefore the following :—
I. To determine the nature of all laws which are
laws properly so called.
11. To distinguish between the various kinds of
laws, proper and improper ; that is—
1. To determine the marks by which the laws of
God may be distinguished from other laws,
and herein to determine the nature of the
signs or index by which these are manifested
to man. This involves a consideration of—
i. The pure theory of utility.
The pure theory of a moral sense.
iii. The theory which is compounded of
these two.
1 Lectures on Jurisprudence, i. 85.
316 THE NATURE OF POSITIVE LAW. [XIII
2. To determine the distinguishing marks of
positive moral rules, and herein of positive
moral rules which are laws imperative and
proper, and of positive moral rules which
are laws set by opinion.
3. To determine the distinguishing marks of laws
metaphorical or ﬁgurative.
4. To determine the character of laws positive,
and since it is found that a positive law is
a command set by the Sovereign to the
members of the independent political society
in which the Sovereign is supreme, this
involves a consideration of the nature of
Sovereignty and of an independent political
society.
I shall now follow Austin through so much of
this scheme as seems necessary for the object we have
in view.
‘0' _ .
I. To determine the nature of all laws which are
laws. properly so called.
Every law or rule (taken with the largest signiﬁcation which
can be given to the term properly) is a command. Or rather
laws/er, rples, properly so called, are a species of command.1
The meaning of the word “command,” then, is “the
key to the sciences of Jurisprudence and of Morals,”
and our ﬁrst business is to analyse its meaning with
precision. This analysis is brieﬂy as follows :—
A command is a signiﬁcation of desire made by
one person A, to another person B, together with a
1 Lectures on Jurisprudence, i. 90.
XIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 317
power and intention in A to punish any disregard of
his wish on the part of B. Since then B is liable to
punishment if he disobeys the command, he is said to
lie under a duty to obey it. Hence Command and
Duty are correlative terms. Moreover, the evil with
which B will be visited in case of disobedience is
called a Sanction. Hence a Command is a wish ex-
pressed by A to B, accompanied with the threat of a
Sanction ; and hereby a Duty is laid upon B.
An attempt has been made to admit a reward
as a means of enforcing a Command, as well as-a
Sanction; but Austin rejects this, chieﬂy on the
ground that thereby no Duty is created. Hence
the ideas or notions comprehended by the term Command are
the following :—
1. A wish or desire conceived by a rational creature that
another rational creature shall do or forbear.
2. An evil to proceed from the former, and to be incurred by
the latter, in case the latter comply not with his wish.
3. An expression or intimation of the wish, by words or
other signs.1
Thus Command, Sanction, Duty, are inseparably
connected terms. Each “ signiﬁes the same notion;
but each denotes a different part of that notion, and
connotes the residue.”
Having, then, determined the nature of a command,
it next becomes necessary to distinguish among com-
mands those which may be further described as laws
or rules. Austin decides that a law is not determined
by its being a command issued to a class of persons
gen erally, but by its being a command which refers
1 Lectures on Jurisprudence, i. 94.
318 THE NATURE OF POSITIVE LAW. [XIII
not to one action, but to a class of actions. Hence,
among commands, a law is one which obliges a person
or persons generally to acts or forbearances of a class.
A law being thus deﬁned as a species of command,
Austin proceeds to examine what this really means.
Hgﬁnds that a law must obviously proceed from
USIHPQPIOI'S to inferiors; and, if it is asked what is
‘meant in this case by superiority, we are told that
it is simply the power of visiting the inferior with
evil. He is, however, careful to add at once that
this superiority rarely exists in human relations. The
only absolute superior is God. Among men there is
no monarch so powerful as not to have reason to fear
i’ that he may be met by a still stronger power in his
_ ‘ people if he asserts his superiority too violently.
There then follows a discussion of various laws
which, although they are not properly commands, are
yet appropriately treated in the science of J urispru-
dence; but we need only refer here to the remarks
made upon Customary Law and upon Judge-made
Law. It will be enough to sum up Austin’s position
as follows :-—A*~ rule of Customary Law, as such, is
merely a rule of positive morality ; it is only when it
is actually adopted by the Courts that it leaves this
state and becomes a rule of positive law. As to
J udge—made Law, we assign to that its true position
by distinguishing between commands which are
express, and commands which are tacit. A rule of
law, then, which is made by a judge, whether he
merely declares a custom, or whether he introduces a
new principle, becomes a rule of positive law in virtue
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 319
of the tacit assent which the sovereign power has given
to its promulgation as a command.
As we have thus seen that Austin deﬁnes a law as a
species of command, and that the superiority by
virtue of which this command is issued depends upon
superiority of force, it may be instructive to point
out how the same notion has been recently adopted
by the distinguished German jurist to whom I have
frequently referred. In his work, Der Zwecle im
Recht,1 he attempts to trace the origin and develop-
ment of Law, and assuming, as he does, that society
is based on Force, his great object is to determine
how Force gradually learns to submit to control, and
how the idea of Law is evolved ; in other words, how
Force comes to be exerted in accordance with Law.
We shall at several points compare his results with
those arrived at by Austin ; but at present it is
sufficient to note that he conceives of Law in the
manner just described, as a Command resting upon
the superior force of a Sovereign. This is abundantly
clear from the following passages :—
The current deﬁnition runs: Law is the collection of com-
pulsory rules holding good in a State, and it is in my eyes quite
right. The two points which it includes are the rule and the
realisation of the same by force. Only those rules set up by
the community deserve the name of Law which have Force, or
since, as we have seen, the State alone possesses the monopoly
of Force, which have the power of the State behind them; and
herewith too it is implicitly asserted that only the rules to which
the State grants this reality are rules of Law, or that the State
is the only source of Law.2
1 Leipzig, 1877. 2 P.- 318.
320 THE NATURE OF POSITIVE LAW. [XIII
Every rule contains a conditional imperative; it always consists,
therefore, of two parts—the condition (the supposition, the con-
stituent-fact) and the consequence (the imperative, the command);
and thus it can always be put in the form: if . . . _ then . . .1
It makes no difference, of course, that the real com-
mand may be addressed to an officer of the govern-
ment, for this implies also a command to the subject.
There is indeed no legal command which is addressed only
to an officer and not also to a private person; it is indeed the
absolute criterion of every true rule of law, that in the last
instance an officer always stands behind it, who, in case of
necessity, enforces it.2
There are important differences between the views
of Law taken by Austin and by Ihering; but they
agree to this extent, that with each of them Law
rests ultimately on Force, and that the abstract idea
of it is that of command. We shall ﬁnd, however,
that Ihering is careful to enquire how Law which
thus rests upon Force comes to be ﬁnally superior to
Force, and to bind the Sovereign as well as the subject
—a point which Austin indeed notices, but which he
does not attempt to bring within his theory.
II. Having thus examined into the nature of a
law proper, Austin takes up the second part of his
task, which is to consider how positive laws are to be
distinguished from other laws, properly or improperly
so called.
1. Laws of God.
It is perfectly easy to distinguish these from
positive laws. They have, indeed, all the character of
laws properly so called, but they are determined at
1 Der Zweck im Recht, p. 337. 2 Ibid.
xIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 321
once by. the superior from whom they proceed.
Having settled so much, Austin, as I have already
remarked, leaves his chosen task and commences an
examination of the marks by which the Divine laws
maybe known, in order that there may be an
intelligible test of the goodness of positive laws. It
would be foreign to our purpose to follow him into
this discussion. He maintains that the only test is
that of general utility; and this is done with an
accuracy and clearness which makes his work con-
spicuous among ethical writings. The practical out-
— come is that the champions of this theory, and those
of 4 the theory of a moral sense as indicating the laws
of God, are agreed upon the chief rules of morality,
,and that in matters where such rules do not exist, all
alike are content to take utility as the test. Hence
the working hypothesis which has been generally
adopted is the third which Austin considers, and this
is set down as a mixture of the other two. The best
proof that this has been found adequate to the dis-
tinctions of real life is seen in the fact that both the
ancients and the moderns have founded upon it a
distinction between different rules of law.
i. Where the rule of law is identical with a rule
of morality, it is said by the Roman J urists
to belong to the jus gentium, and by the
moderns to law natural.
ii. Where the rule of law is not identical with a
I rule of morality, it is said by the Roman
J urists to belong to the jus ciuile, and by
the moderns to law positive.
Y
322 THE NATURE OF POSITIVE LAW. [XIII
This distinction, at least, is exact enough for
practical purposes. It may be doubted, however,
whether, as Austin asserts, it is intelligible only on
the mixed hypothesis above noticed. The hypothesis
of a moral sense merely says that large classes of
action are known instinctively to be forbidden by the
law of God; but it does not deny that many others
remain which must be decided by expediency. The
hypothesis of general utility does not deny that this
test is applied with unequal certainty to different
classes of actions. About the tendency of some there
is universal agreement, and they are by common
consent condemned: about the tendency of others
there is no such agreement, and different people may
hold different opinions. It may be doubted whether
Austin need have introduced three hypotheses at
all, for the pure hypothesis of a moral sense has
probably never been seriously propounded. Whether
then We adopt the theory of a moral sense or of
utility, we equally have a distinction between rules
which are universally recognised (jus gentium, natural
law), and rules which may vary with different views
of expediency (jus civile, positive law). Moreover,
the former rules are constantly enlarging their borders
at the expense of the latter. It is to the advantage,
however, of the theory of utility that it clearly
recognises how this is done. The tendency of all the
chief actions of men is perceived at a very early time,
and rules are laid down to regulate them; then, as
our knowledge of social life increases, the tendency of
actions which at ﬁrst was doubtful becomes clearer,
X111] THE ENGLISH SCHOOL OF J URISPRUDENCE.
323
and these, as they leave the sphere of opinion and
reach that of practical certainty, are changed from
rules of expediency into rules of morality. In im-
mediate practice, then, there is little difference between
the two systems : each has its domain of natural law,
or law upon which all are agreed ; and positive law, or
law which is still a matter of opinion. The theory of
utility, however, gives us an intelligible account of
how the domain of natural law is spreading, and
aﬂfords us a guide as to the measures by which we
may assist it. On this theory a rule may in due time
be found to govern all important classes of actions, and
these rules are Austin’s rules of Divine law. Where
they have already been found they have become rules
of morality, and if they are further enforced by legal
sanctions they have become rules of positive law:
but where these rules have not been discovered, the
tendency of the corresponding actions is merely a
matter of opinion, and the laws which govern them
are positive laws merely. Thus, too, violations of the
former correspond to the old class of crimes which
are mala in se, and of the latter to those which are
mala guia prohibita.
To this matter Austin returns in another place
when he discusses the meaning of jus naturale, and
it will be convenient to consider at this point the
further considerations which are there introduced into
the subject. It is only after some practical means
have been discovered for the improvement of law that
men arrive at the idea of a pattern to which all law
ought to conform. In order to trace this order of
324 THE NATURE OF POSITIVE LAW. [XIII
events Austin selects the progress of law at Rome.
The peculiar circumstance in that case was the exten-
sive intercourse between Romans and foreigners.
Hence it became necessary to establish a special
tribunal and system of law for the latter, and the
form which this took reacted powerfully on the strict
Roman law. Being founded partly upon considera-
tions of general utility and partly upon actual laws
current at Rome and elsewhere, it acquired a degree
of ﬂexibleness and liberality which was wanting to
the old Civil Law, and as opposed to this, which was
the jus ciuium, it was known as the jus gentium.
Hence also, on account of these qualities and its
obvious fairness as compared with the old systems, it
became known as oeguitas. But this method of
making law was extended in course of time from the '
proctor peregrinus to the proctor urbanus, and so the
law made by him, known as the jus prcetorium, also
came to be described as cequitas. Then as soon as
J urists abandon the practical side of law and com-
mence speculation, a new turn is given to these
expressions. The jus gentium is no longer the law
which is conversant about foreigners, but it is now
the law which obtains among all nations, and when it
is asked why it thus obtains among all nations, the
answer is, because it conforms to natural law. Hence
the expression loses the exactness which it had
before: men no longer think of a certain actual system
as being superior to others, but they also conceive of a
certain ideal system to which all ought to conform.
Whenever, then, after this idea has been established,
xIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 325
we meet with the terms jus gentium, teguitas, or
jus naturale, we have to consider whether they re-
present an actual system of law, or merely an ideal
one.
Having thus examined the origin of the term ,
natural law, Austin proceeds to examine the meaning
which is assigned to it in modern Jurisprudence.
distinction between natural law and positive law
seems to rest upon the fact that some rules are of
such obvious utility that any society, although it
were in a savage state, would observe them; while
others would not be observed in such a society, either
because it had no need for them or because it was too
ignorant to discover them. This is really equivalent
to saying that natural law is that which obtains as
positive law in all political societies, whereas positive
law obtains in some one or more only; for as some
political societies are but little removed from the
‘savage state, it is probable that any law which is
observed as positive law by all political societies
would be observed as a moral rule by a savage
society. Hence, among the moderns, natural law
means that law which obtains in all political societies,
and so far is equivalent to the jus gentium of the
early period of Roman Law. It is, however, more
extensive than this, for it includes not only rules
of positive law, but those moral rules which are com-
mon to all nations, and in particular the rules of posi-
tive morality which govern their mutual intercourse.
We may now compare this jus naturale with the
Divine Law which Austin has been examining, and
326 THE NATURE OF POSITIVE LAW. [XIII
enquire whether, upon the theory of utility, it does
really correspond to any distinction in laws. Austin
says that it does, indeed, correspond to an actual diﬂer-
ence, but that it is practically useless.
For every human rule (be it universal or particular) which
accords with the principle of utility must accord with the
Divine Law of which that principle is the exponent. So that
all positive rules, particular as well as universal, which may be
deemed beneﬁcent, may also be deemed natural laws, or laws of
Nature or the Deity, which men have adopted and sanctioned-1
There is a distinction here, however, which Austin
seems to have overlooked. A law may seem to us
beneﬁcent, but yet we may not be sure that we have
hit upon the one that is most in accordance with
the dictates of utility. We may, therefore, adopt, as
we have already done, a middle course between the
two above laid down. Thus the J urists in general
say that natural laws are those which are set by
the moral sense, or whose utility is obvious to every
one: offences against these are mala in se ; but that
all other laws are merely positive, and offences against
them are mala guia prohibita. Austin, on the other
hand, says that natural laws are those which are
either obviously of general utility, or which have
been shown by experience or reason to be on the
whole beneﬁcent; hence all offences against these
are mala in se : an offence is only malum guia joro-
hibitum when it is committed against a law which
is useless or mischievous, and then we have to con-
sider whether the speciﬁc advantage to be derived
1 Lectures on Jurisprudence, 590.
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 327
from breaking the law is not more than balanced
by the damage done thereby to the cause of order
generally. But since we are now using the term
natural law as indicating the ideal to which all law
must conform, we should, perhaps, act more consist-
ently if we made the following distinction.
1 Some laws are of such obvious utility that every
one assents to them readily; we can have no better
proof, then, that these conform to the test; they are,
therefore, a part of natural law. Other laws are not
of obvious utility to the people generally, because they
want special study for their advantages to be realised;
but .to all who can give them this study their utility
is obvious; these also are a part of natural law. A
third kind of laws, again, are known to be merely
attempts to discover what is of most utility; whether
they have succeeded or not is at present doubtful;
these, then, are merely positive. Offences against
laws of the ﬁrst kind are clearly mala in se, and of
the last kind, mala guia prohibita; those against
laws of the second kind are also mala in se, but
whether a knowledge of them will be imputed to
every one depends upon the degree of education at
which the people have arrived.
Finally, we must remember that the term Natural
Law means either those positive laws and rules of
morality which are actually observed among and be-
tween all nations, or that Divine Law which is the _
Q test to which all positive rules, legal and moral, ought ’
to conform. The fact that a law belongs to natural
law of the ﬁrst kind is the best evidence we can, as a
328 _ THE NATURE OF POSITIVE LAW. [XIII
rule, get that it conforms also to natural law of the
second kind, for common morality is due to the imper-
ceptible accumulation of centuries of experience; and
though moral teachers may improve it, it is impossible
for any extensive alterations to be made.
We thus see that Austin introduces his test for
legislation, not in its natural place after the deﬁnition
of Law or of the manner in which Law is made, but
incidentally, in considering the nature of Divine Law.
I have elsewhere pointed out that the introduction of
this term is perfectly useless, and indeed confusing,
and that it merely enables Austin to examine the theory
of utility as a test for legislation without too openly
seeming to leave his subject. But as the matter is
discussed at this point I shall consider in connection
with it the views of Ihering. He proceeds to it in
a perfectly logical manner. Having dealt with the
formal parts of Law, with its aspects as a means of
compulsion and as a rule, he next enquires as to the
. contents of it. I We have already seen how other
German writers ﬁrst lay the foundations of Morality
and then assert that Law is only intended to realise
the external conditions. for its existence. Ihering,
however, follows Austin in excluding the idea of
Morality altogether. The ﬁrst point which strikes him
is that Law is endlessly diverse. This he accounts for
by saying that the aim in Law is not as in Science to
arrive at general truths, but to discover the right
means of attaining certain objects. A law, then, is
good not because of its truth but because of its ﬁt-
ness. “ The test of Law is not the absolute one of
xIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 329
truth, but the relative one of purpose.”1 Hence, as
both the conception of the purpose and the means of
attaining it may widely differ, we see that laws will
vary at different times and places.
The idea that Law must be at bottom everywhere the same,
is no better than the idea that medical treatment must be the
same for all patients ; a universal Law for all people stands upon
the same level with a universal prescription for all patients.2
The possibility of such an idea arises from the fact
that certain laws are so generally suitable that they
are found everywhere, and hence we have the old I
distinction between jus gentium and jus cioile. This,
however, does not alter the fact that the justiﬁcation
for every law is to be found in its ﬁtness for securing
a certain object, and it is the highest task of J uris-
prudence to investigate and demonstrate this ﬁtness.
It might now seem to be an easy step to pass from
this to the assertion that the object of Law is to secure
the greatest happiness of the greatest number. Such,
however, is not the plan that Ihering adopts. This
may indeed give a test for Morality and a test for the
ultimate pattern of Law, but it is of little use for
explaining actual systems of Law. The obj ect of Law;
is to secure suitable conditions of life for the individuallis a
and the question of what these conditions are is deter-"
mined by the opinion of the individual. This way
of stating the matter gets rid of the prejudice which
frequently exists against utility in its bare form.
Thus, after pointing out that eating, drinking, cloth-
1 Der Zweclt im Recht . 430. 2 Ibid. . 431.
a P P
330 THE NATURE OF POSITIVE LAW. [XIII
ing, etc., form part of the conditions of life for each
individual, Ihering goes on to say :—
But life means not merely physical existence ; even the
poorest and the meanest requires more from life than the mere
maintenance of the same ; how varied too are the conceptions of
it, beginning in the case of one where they end with another;
the idea of life which each carries in himself, his subjective pic-
ture of it, contains for him the measure by which he estimates
the Worth of his life, the object of his whole struggle, the motive
of his will. The ideas to which in this sense life is subjectively
bound I call the conditions of life. I understand thereby not
only those of physical existence, but all the advantages and en-
joyments which, in the judgment of the subject, give life its true
value.1 -
There are several points in this view which call
for notice. As compared with the doctrine of such a
writer as Trendelenburg, we see that it lays stress
upon the individual life rather than on the united life
of the community,2 though otherwise in the general
objects which Law has to secure, it closely resembles
it. But if we compare it with the view of Austin, or
rather of Bentham, we ﬁnd an important difference.
This is not so much in the direct importance assigned
to the higher purposes of life, for these can be derived
from the principle of utility, but rather in the fact
that the matter of the law is to be adjusted not to an
abstract test, but to the subjective views of the mem-
bers of the community. Utilitarianism may be said
to tend to the same end, because Law then best pro-
motes happiness when it satisﬁes existing wishes and
expectations; but in such a case this is a mere deduc-
1 Der Zweck im Recht, p. 435.
2 But see further his remarks on the community as being the
object of all law, p. 454.
xIII] THE ENGLISH SCHBOL OF J URISPRUDENCE. 331
tion from the general principle, not the principle
itself. A further objection may indeed be taken that
Ihering’s view is not meant to set up a test for Law
as it ought to be, but merely to explain Law as it
is, but a moment’s consideration will show that this
establishes no real difference. The only practicable
Law is one that conforms to the wishes of the people,
or, as Ihering says, realises their views of the conditions
of life ; and the only practicable change in Law is one
that is required to bring the Law into harmony with
such views, or at least one of which it may safely be
predicted, that it will speedily be followed by a corre-
sponding change in views.
There seems to me to be much practical truth in
this opinion, and it harmonises exactly with what I
have already said of the making of Law. It contrasts
favourably with Austin’s ﬁction of a Divine Law as
the test of legislation, and it has the great merit of
being eminently practical. It does not present to us
a far-off divine pattern, to which Law may ultimately
conform; it is content to remember that Law is meant
to express the wishes of individuals, that the happiness
of each is only to be estimated by his own wishes,
and that legislation can never hope to travel far in
advance of these.
We have now to carry further our distinction be-
tween Laws proper, Laws which are analogous to
Laws proper, and Laws metaphorical. Excluding for
the present the last kind, the others may be divided
as—
i. Laws (proper) set by God to men.
332 THE NATURE or POSITIVE LAw. [x111
ii. Laws (proper) set by men as political superiors,
or by private men in pursuance of legal rights.
iii. a. Laws (proper) set by men to men, not as
political superiors, and not in pursuance of
legal rights.
19. Laws (improper), closely analogous to laws
proper, but which are merely opinions held
about human conduct.
These three classes comprehend Divine Laws, Posi—
tive Laws, and rules of Positive Morality. We have
already distinguished between the ﬁrst two by con-
sidering the superior from whom they proceed. We
shall now distinguish between Positive Law and rules
of Positive Morality. Now, “ a positive law, or every
law simply and strictly so called, is set by a sovereign
person, or a sovereign body of persons, to a member
or‘ members of the independent political society wherein
that person or body is sovereign or supreme.”1 Hence
to describe exactly the marks which distinguish posi-
tive law, we must ﬁrst analyse the expression sore-
reignty, the correlative expression subjection, and the
inseparably connected expression independent poli-
tical society. But as this analysis runs to great length,
Austin is contented at ﬁrst merely to hint at it, and
he passes on to consider the marks of positive moral
rules.
2. Positive Moral Rules.
These are distinguished from Positive laws by a
negative sign. They are not commands, direct or
1 Lectures on Jurisprudence, i. 181.
xml THE ENGLISH SCHOOL OF JURISPRUDENCE. 333
circuitous, set by a sovereign person or persons in his
or their character of political superior. But amongst
these we must distinguish.
a. Some are laws proper. They resemble positive
laws in that they are imperative rules set
by men to men, but they are distinguished
from them in that they are not set by men
as political superiors, or by private persons
in pursuance of legal rights.
It is more important, however, for our purpose, to
consider the next class.
I). Laws which are laws improper, viz. those
which are set by public opinion.
The analogy that exists between these and law
proper consists in the following points :—
i. In each case a desire for a certain course of
conduct to be pursued is felt by a person or
a body of persons.
ii. In each case an evil will probably result to the
person who disobeys this wish.
iii. By this sanction or will, persons are inclined
to obey, and hence, in each case a uniformity
of conduct is produced. .
We further see that the points of distinction be
tween the two kinds of laws are as follows :—
i. In the case of positive law the wish is enter-
tained by a determinate body of persons, it
is capable of being exactly expressed in a
command, and the sanction can be inﬂicted
with certainty and precision.
334 THE NATURE OF. POSITIVE LAW. [XIII
ii. But in the case of positive morality, the body
of persons who entertain the wish is unde-
terminate; they are therefore incapable of
uttering it in an express command, or of '
inﬂicting the sanction with certainty and
precision in case of disobedience.
We need not follow Austin into his more minute
examination of how a determinate and an indeter-
minate body of persons are to be distinguished. It
will be sufficient to notice certain relations existing
between the three kinds of laws. Thus, as each is
enforced by a sanction, these sanctions may be properly
distinguished as religious, legal, and moral. Of moral
sanctions, some, of course, are proper sanctions, as in
the case of those enforcing rules of morality which
are laws proper; but others are merely called sanc-
tions by way of analogy. Moreover, each kind of law
imposes a duty upon the persons to whom it is ad-
dressed. Hence, we have religious, legal, and moral
Duties. The mention of Duty induces Austin to in-
troduce here the corresponding term Right, though
the full examination of it is reserved for a later place.-
Lastly, it is necessary to consider the relations
which these different commands themselves, so far as
their substance goes, bear to each other. Thus all
three may coincide, as in the case of murder; they
may not coincide, as in the case of smuggling; or they
may directly conﬂict, as in the case of duelling. Hence
we see that a positive law may be superﬂuous, because
its object is already attained by divine law or moral
rules; or it may be impotent, when it strives in vain
xml THE ENGLISH SCHOOL OF J URISPRUDENCE. 335
to contradict one or both of these. Austin, moreover,
points out that where positive law happens to coincide
with divine or moral law, confusion arises as to its real
origin. When coinciding with moral law, the positive
law is said to be established by custom, instead of
being established by the sovereign upon the model
of pre-existing custom ; and so, when coinciding with
divine law (or the law of nature), it is said to owe its
existence to this divine law rather than to be merely
established in imitation of it.
3. Laws metaphorical.
I have already remarked that the words analogical
and metaphorical only differ in representing different
degrees of similarity. N ow laws improper, which
have been said to be related to laws proper by way of
analogy, have one point of resemblance which is en-
tirely wanting in the kind of laws now under consider-
ation; they are supported by a Sanction. But “ no
property or character of any metaphorical law can be
likened to a Sanction or a Duty. Consequently, every
metaphorical law wants that point of resemblance
which mainly constitutes the analogy between a law
proper and a law set by opinion.”1
I The real similarity, however, which suggests this
application of the word law consists in two points.
i. It is used when uniformity is observed in a
series of events, since this uniformity re-
sembles the effect of a law proper.
1 Der Zweck im Recht, i. 211.
336 THE NATURE OF POSITIVE LAW. [XIII
This uniformity is very generally believed to be
due to the will of a rational being.
Having thus criticised the metaphorical use of the
word law, Austin proceeds to criticise a certain meta-
phorical use of the word sanction, introduced by Ben-
tham when he speaks of physical sanctions. Thus,
although he allows that these have certain points of
resemblance with sanctions proper, yet the points of
difference forbid the use of the term in this sense, save
with so wide an extension as to destroy its usefulness.
The points of resemblance are indeed the following :—
i. When suffered, physical sanctions are suffered
by rational beings for acts or omissions of
their own.
ii. Before being suffered they inﬂuence conduct.
The great point of difference is that they are not
suffered for disobeying the desire of rational creatures.
Hence, as the whole idea of Law consists in the con-
1 ception of a command addressed by one rational
creature to another, with an intention and with power
to inﬂict an evil in case of disobedience, the great
dissimilarity between the two cases forbids our apply-
ing the word Sanction in each of them, without rob-
bing the word of its real force. And yet it might
seem to be not impossible to ﬁnd a very proper place
. for these sanctions in connection with the Divine law,
which Austin has been at so much pains to expound.
He has, indeed, just said that this is supported
by religious sanctions; but if we enquire further
what these religious sanctions are, we ﬁnd ourselves
on the horns of a dilemma which has been hitherto
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 337
carefully avoided. The whole manner in which
Austin treats the Law of God, so far as its substance
goes, makes it possible for all parties to use this
term, it being understood that absolutely nothing need
be assumed as to the nature of the Deity. But when
we come to the procedure by which these laws are p
brought into action, what then? We must either say
that the sanctions are really religious, consisting in
direct judgments by God upon man, and then we are
in the midst of religious controversies, or we must
introduce those very sanctions which Austin speciﬁ-
cally rejects. And this we can hardly avoid doing.
If it be assumed that the rule which is most in accord-
ance with Utility is the Divine law, and if we say that
this is a command, we can hardly refuse to allow that
the only sanction of which we have actual knowledge
consists in that evil which naturally ensues upon
breaking it. There are, indeed, two points in which
it differs from an ordinary sanction. It is not in-
variably inﬂicted upon the offender himself, and when
once incurred it comes inevitably of its own accord.
This latter fact, however, contains in it nothing special.
It is rarely that the legislator himself enforces his
own laws ; for this purpose he provides suitable
machinery, and the only difference in this respect
between a human and a natural Sanction is, that the
machinery provided for the inﬂiction of the one con-
trasts very unfavourably with the unerring certainty
of the other. The only reason, then, that remains for
denying to these evils the name of Sanction is, that
they are not always visited upon the offender himself.
2
338 A THE NATURE OF POSITIVE LAW. [XIII
But this should rather increase than detract from'
their efficacy as such. It is here that we realise the
intimate dependence of men one upon the other; the
divine laws proper are addressed not only to the in-
dividual and supported by religious sanctions, but
also to the race and supported by natural sanctions.
We have here used the term natural instead of
physical, because it includes moral as well as physical
evil; we have, indeed, to adjust our rules of utility to
ensure moral advantage and avert moral evil, exactly
as for physical advantage and physical evil. We may
say ﬁnally, that nothing shows more clearly that the
divine law is enforced by natural sanctions, than that
the occurrence of these is the surest way of knowing
that the divine law has been violated.
This will be the most suitable place for pointing
out that the distinction which Austin draws between
positive laws and laws of nature, is a result rather of
his peculiar views of Law than of what is perhaps the
essential feature in the matter. The question has been
recently discussed by Prof. Pollock,1L and the general
tenor of his remarks seems to imply that he inclines to
the opinion which regards Law as a rule established
for human guidance, and only appealing to force in
exceptional cases. The real resemblance between laws
of man and laws of nature is indeed very close, though
it is seen rather in their effect than in their actual
nature. Each alike produce regularity and order where
otherwise there must be chaos and anarchy; of each,
likewise,‘ we may say that they are obeyed, because it
1 Essays in Jurisprudence and Ethics, chap. ii.
xIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 339
is the nature of the men or the particles to whom they
relate to obey them. There is, however, this distinc-
tion, that, so far as we know, the laws of nature are
immutable, while the laws of man vary continually.
Although, indeed, they rely occasionally on force, yet
their real support lies in the fact that most men do,
as a fact, obey them voluntarily ; we may then, perhaps,
reverse the order of ideas and say that positive laws
vary with the varying nature of men in such a manner
as to ensure that they will in general be voluntarily
obeyed. Law is known by its results: where we see
order reigning, whether in nature or in society, there
we say there must be law : but of the order in nature
we know nothing but the fact that it exists : of the
order in society we know far more ; we see how it is
produced; we see it visibly depending on law—a law
which, because the men whose actions it regulates are
rational, must be discovered by themselves, and because
they are free must be supported by force, but which,
in general nevertheless, relies for support on the fact
that it is suited to their natures.
4. Positive Laws.
Having thus settled the distinguishing marks of
all laws other than positive laws, Austin now turns to
the characteristics of these. He has already pointed
out that for this purpose he must ﬁrst ascertain the
meaning of the terms “ sovereignty,” “ subjection,” and
“ independent political society.” This he next proceeds
to do, and with a minuteness which I shall not attempt
to reproduce. I shall merely hint at those points
340 THE NATURE or POSITIVE LAw. [XIII
which will immediately serve our purpose. Thus we
read :—
The superiority which is styled Sovereignty, and the inde-
pendent political society which Sovereignty implies, is distinguished
from other superiority and from other society by the following
marks or characters :—
1. The bulls of the given society are in a habit of obedience
or submission to a determinate and common superior: let that
common superior be a certain individual person, or a certain body
or aggregate of individual persons.
2. That certain individual, or that certain body of individuals,
is not in a habit of obedience to a determinate human superior.1
Thus of these marks one is positive and the other
negative, and it is necessary for both to be present for
the existence of a sovereignty and society of the kind
in question.
It is, of course, seen at once that these tests contain
in themselves elements of uncertainty: thus, how shall
we determine what is meant by bulls and by habit, and
how large must a society become before it can claim
to be a political society. These are questions which
in the nature of things do not admit of an exact answer.
Austin next determines the forms of supreme
government and the limits of sovereign power. Into
the former topic we need not enter: as to the latter it is
observed that though there may be constitutional limits
to sovereign power, yet there can be no legal limits.
The constitutional law, then, which prevails in a state
for the guidance ofxthe sovereign consists of rules of
positive morality.” It must be understood, however,
that this is only to be understood as against the sove-
reign body collectively; thus separate members of the
1 Lectures on Jurisprudence, i. 226.
xIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 341
sovereign body may act in a way which is both uncon-
stitutional and illegal. -
Having thus discovered that the one fact upon
which political society rests is this subjection of one
part of it to another part, Austin proceeds to consider
how this method of treatment squares with current
notions as to political liberty. This he shortly deﬁnes
to be such freedom from legal obligation as is left by
a State to its subjects, and then gives vent to a very
characteristic utterance on the matter :—
Political or civil liberty has been erected into an idol, and
extolled with extravagant praises by doting and fanatical wor-
shippers. But political or civil liberty is not more worthy of
eulogy than political or legal restraint. Political or civil liberty,
like political or legal restraint, may be generally useful or gener-
ally pernicious ; and it is not as being liberty, but as conducing
to the general good, that political or civil liberty is an object
deserving applause.1
I The ﬁnal end of government is the furtherance of
the common weal, and this is attained in two ways:
by conferring Rights upon its subjects and imposing
relative Duties for the protection of these Rights, and
by imposing such absolute Duties as tend to promote
the good of the community at large, although they do
not advance the interests of determinate individuals.
Hence, as for the attainment of its object government
always imposes Duties, whereas it only sometimes im-
poses Rights, it is clear that it proceeds rather by way
of legal restraint than of political liberty.
It is now possible to give the correct deﬁnition of
a positive law.
1 Lectures on Jurisprudence, i. 282.
342 THE NATURE or POSITIVE LAW. [xm
Every positive law (or every law simply and strictly so called)
is set, directly or circuitously, by a sovereign individual or body,
to a member or members of the independent political society
wherein its author is supreme.1
To this some slight corrections are added which it
is unnecessary for us to introduce here.
We thus see that Austin, having deﬁned Law to be
a command resting upon the superior force of the
Sovereign, does not specially concern himself with any
limitation of such force ; this may in fact exist, but it
is outside the domain of Law to determine it. On the
other hand, the previous view of Law that I have given
regards it as a rule proceeding from and observed by
the whole people, though enforced where necessary by
compulsion. There is, however, a view intermediate
between these two which recognises both the Force on
which Law is supposed to be founded, and also that this
Force is subjected to ﬁxed rules, and that hence Law
is binding both on the Sovereign and on the Subject.
To a follower of Austin this sounds absurd, for he has
been taught to believe that legal obligation can only re-
sult from superior force, but it may not be uninstructive
to consider brieﬂy the position which Ihering takes up.
I may point out, in the ﬁrst place, that he loses
all the support which might be derived for his argu-
ment from recent views as to the origin of Law in
custom. We have seen that he regards Savigny’s
hypothesis as a mere romance, and being apparently
unacquainted with the views which I have put forth,
chieﬂy on the authority of Sir Henry Maine, he is
1 Lectures on Jurisprudence, i. 339. .
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 343
driven to the opposite extreme, and derives all Law
from commands. He has already stated his opinion
upon the power of the State in a way quite in accord-
ance with Austin’s views. Thus he says :-——
The absolute requirement of the State force, and one which
is assumed by the very purpose of the State, is the possession of
supreme power—a-power which is superior to every other which
comes within its province. All other powers, whether of one or
of many, must be under it, and it above them ; and so language
denotes the one side of the relation as Subjection, the other as
Sovereignty.1
Powerlessness indeed, he says, is the one crime
of governments which the people cannot forgive.
Despots have often been tolerated and almost wor-
shipped, but anarchy is destructive of all society.
He who puts an end to it, however this be done, though with
ﬁre and sword, the native usurper or the foreign conqueror,
earns the gratitude of the community ; he is their deliverer and
benefactor, for the most intolerable form of political subjection
is much better than an entire failure of government.2
Having thus established the State power as supreme,
he deﬁnes Law as consisting of such rules as it enforces.
To this I have already referred. But he does not stop
here. He recognises that there are two points in Law-
Force and Rule—and that Law only deserves its name
when the Force is subject to the Rule. The problem,
then, which has to be solved is brieﬂy this: How
does a rule arise out of mere force’.Z or, since the
sovereign power can be limited by nothing but itself,
he investigates “the origin of Law by way of the
Self-limitation of Power.” 3 For this purpose Law is
i 1 Der Zweck im Recht,p. 310. 2 Ibid. p. 312. 2 Ibid. p. 322.
344 THE NATURE or POSITIVE LAW. [x111
traced through three stages, which are deﬁned in the
following manner :—
He who has the power to dictate to another his course of
action by means of a command can do this in three ways—
either in every single case in which he thinks it necessary (single
command) ; or in general for all future cases (abstract command) ;
and, in this latter mode, either so that the command shall bind
merely the other, or himself also (unilateral and bilateral obli-
gation).1
Hence we have three stages in the development
of Law, and it is not till we reach the last that its
proper form is obtained.
It is in the single command that Ihering sees the
origin of Law; but, as he confesses that of the actual
existence of this stage history has preserved no trace,2
his hypothesis deserves no more respect than that of
Savigny, which he elsewhere so abruptly dismisses.
We may therefore pass on to the next stage, in which
the single is replaced by the general command of uni-
lateral obligation. This, like all advances in Law, he
says is dictated by selﬁshness. It is easier to issue
general commands than isolated ones, and hence rules
take the place of orders. But as these are meant
to bind only the subjects, they fall far short of the
true idea of Law: the object of Law is to secure
legal order, and this is incompatible with the caprice
of a despot. Yet even here we see the germs of
later development. Already we have a certain
amount of order and of equality— of order, for,
though the perfection of this depends on the mutual
co-operation of the two parts of society, Ruling and
1 Der Zweck im Recht, p; 324. 2 I bid. p. 332.
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 345
Ruled, yet still the regularity which rests on fear
only is order of a kind; of equality, for, although the
despot may prefer certain classes of the community
to others, yet within these the maxim of equality
must be applied. If we enquire, however, after
another element in Law—that feeling of Right which
in civilised communities it is meant to protect, and
upon the healthy existence of which it does itself,
according to Ihering, depend—we ﬁnd that under
despotism it can hardly come to maturity, but rather
gives place to that dull submission to the inevitable
which, in the form of Fatalism, paralyses Eastern
nations. .
We thus see that, for the true explanation of Law,
the two points of Force and of Rule are insufficient.
What, then, is wanting? We must pass on to the
third stage, in which the sovereign power not only
issues and enforces the rule, but is itself content to
be bound by it.
This it is that we mean when we speak of legal order
(Rechtsordnung) ; this is the idea which ﬂoats before us when we
speak of a dominion of Right and Law. . . . Law, then, in its
fullest sense implies a bilateral obligation, the special subjection
of the State power to the laws issued by it.1
It will be at once seen that we have here a very
important addition to the idea of Law as expounded
by Austin. Of course he did not fail to realise that
in civilised countries the Sovereign is, as a rule, bound
by Law, but he regarded this rather as a happy acci-
dent than an essential feature. But with Ihering
Law has not obtained its full development until
1 Der Z'weck im Recht, p. 344.
346 THE NATURE or POSITIVE LAW. [x111
Sovereign and Subject are alike bound by it. The
only thing, then, which we have to consider is the
manner in which this binding of the Sovereign is
effected. I‘
The fact that men have at length arrived at the
idea that the Sovereign is bound by Law makes them
distinguish his conduct like that of private persons,
according as it conforms to the Law or not. The
difference, however, that exists between Sovereign
and Subject requires that disobedience in this case
should have a separate name, and language supplies
us with the term ‘arbitrariness (Willhitr). We may
say, then, that “ arbitrariness is the Sovereign’s viola-
tion of Law Unrecht), and that it is distinguished
from that of the Subject in that one has Power with
him, the other has it against him.” 1 It must be
noticed that this idea of arbitrariness cannot arise
until Law has appeared as controlling Power.
\
The power of the will which has no Law over it is not arbi-
trariness, but more Power ; Power only becomes arbitrary when
Law has appeared by its side.2
If, then, it is an essential element in Law that
the Sovereign too should be bound by it, and if,
nevertheless, the Sovereign is deﬁned as the holder of
supreme power, what certainty have we that this
power will really be subject to the Law’.l This ques-
tion Ihering discusses as follows :—-
i. The motive for the submission of the Sovereign.
For this we need merely look to selﬁshness as
1 Der Z'weclc i/m Recht, p. 346. 2 Ibid,
XIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 347
taught by experience. From the very beginning the
Powerful has found that it is only by putting limits
to his power that he can reap the full beneﬁt of it.
This Self-ruling, however, as in the individual, so also
in the State, is a matter of slow growth.
It is by the tedious path of the development of Customary
Law that Force has disciplined itself and has attained to Law.1
This mention of Customary Law may appear
strange after the way in which Ihering has spoken
of it, but the fact is that the growth of Law depends
on two sources. We may well suppose that the uni-
versal obligation of Law ﬁrst arises with the develop-
ment of Custom; when, after this, the strife of
different classes or tribes gives rise to the idea of
Law as a command, we at once have the tendency
introduced to which reference has just been made.
Prudence requires Power to subject itself to limitations,
and again the rule becomes binding on all alike. But
when men, partly by the blind following of custom
and partly by prudential restraint, have grown familiar
with the idea of Law as binding Sovereign and Sub-
ject, then a sentiment corresponding to this grows up.
Law-ahiclingness becomes, in fact, a part of current
morality. Thus we see that the supreme power of
Law begins in custom, is continued by prudence, and
is ﬁnally upheld by morality. It is no objection to
this that we are confusing Law and Morality, if, at
least, any weight is allowed to the considerations
that have been urged in ‘favour of seeing more in Law
than the mere Command upheld by Force.
1- Der Z'weck im Recht, p. 368.
348 THE NATURE or POSITIVE LAW. [am
But we require not only a general motive for the
self-subj ection of the State-power, but also some
reasonable certainty that this motive will be efficient.
Hence——
ii. The Guarantees.
These are found in the feeling of Right (Rechts--
gefithl) which exists among the people and in the
regular administration of Justice.
I have already tried to show how this feeling of
Right is an important element in the growth of Law ;
it‘ is, indeed, to deﬁne and protect this that Private
Law in general arises, and it is here, indeed, that
Law is ﬁrst developed. His own private interests
are those which touch a man most nearly, and it is in
attempting to interfere with these that Governments
ﬁrst ﬁnd the limits of their power. Afterwards the
same feeling extends to Criminal and to Constitutional
Law, and from their early struggles the people gain
power to inﬂuence these also.
Here, then, we have the endiof the development. Law and
the feeling of Right both upon the same height, both mutually
conditioning and supporting each other.1
We have now arrived at the close of Ihering’s
theory of Law; it takes its rise, indeed, in Force, but
against this the feeling of Right is ever arraying
itself. With us this is called public opinion, and
Ihering differs from Austin and returns again to his
~native school, when he distinctly places the ultimate
basis of Law upon this national feeling.
1 Der Z'weck im Recht, p. 371.
xml THE ENGLISH SCHOOL OF J URISPRUDENCE. 349
Only there where the national feeling of Right has raised
itself to an irresistible power is Law secured against every
attempt at overawing it; upon this guarantee rests in the last
resource every security of Law. Not upon the Constitution;
let one devise it as artfully as one will, none can be conceived
which robs the State power of the ultimate possibility of tread-
ing Law under its feet. Not upon oaths by which men have
thought to secure it; experience shows how often they are
broken. Not upon the phantom of sanctity and inviolability
with which Science has clothed the Law; it is an academical
inviolability which does not check arbitrariness. What alone
checks it is the real power which stands behind the LaW,——a
people who recognise in Law the condition of their existence
and feel the violation of the same as a fatal blow at themselves,—
a people who may be expected to enter the lists for their law?
This is indeed the only view that, in my opinion,
can worthily be taken of Law. It does not repose on
force, but on the assent of a nation. To secure its
utterance and its realisation the nation organises
itself, and we have the apparatus of Government,
with its division between Sovereign and Subject. To
the Sovereign the whole force of the community is
entrusted, but this is only to enforce the Law, not to
break it. A nation is not civilised till behind this
organised actual force there stands one which is
universal though invisible, and against which the
actual force is powerless. The mistake of Austin is
that he bases Law merely on the command of the
Sovereign, who in all societies where Law has reached
its proper development is merely the servant of the
national will; the mistake of Savigny is that he
omits to show how the Sovereign power which arises
with the growth of the State is to be kept in check.
1 Der Zwecl; im Recht, p. 371.
350 THE NATURE OF POSITIVE LAW. [XIII
Ihering corrects this by showing that‘ the Law depends
not merely on the force of the Sovereign who com-
mands, but also on the sense of Right which is
developed in each individual, and which in its total-
ity represents a moral power which no- Sovereign can
despise, and on which Law ultimately rests. '
He investigates also the security for the obser-
vance of Law by the Sovereign which exists in the
regular administration of Justice, and enquires what
boundaries are really to be placed to the limitation of
the State power. Into these matters we need not
follow him; but as to the latter it may be remarked
that not even Law must be worshipped as an idol. ‘
This itself is merely a means to an end, and must
give way when a higher necessity requires it. This,
however, should take place, wherever it is possible, by
a change rather than a violation of existing Law.1
Having thus examined the distinction between
various kinds of laws, and clearly settled the marks
of the positive laws which form, according to Austin,
the appropriate subject of Jurisprudence, our next
step is to consider the manner in which positive laws
are made. This is done in the Lectures on Law in-
Relation to its Sources, the substance of which is
brieﬂy as follows.
In the ﬁrst place, a distinction must be taken
between two meanings which the word source in this
connection bears. ‘Thus the source of a law is either
the immediate author of it, or it denotes the original
1 Der Z'weck im Recht, p. 418. i
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 351
or earliest extant documents from which the substance
of the law may be known. It is clear, however, that
in this last sense the sources of laws are the sources of
the knowledge of them, not of the laws themselves.
Hence it is convenient to restrict the word to its
‘ﬁrst meaning; and when we speak of sources of law
we refer to the authors or authorities from whom
they immediately spring, whether these be a sove-
reign or subordinate legislature, a court of justice, the
opinion of a jurist, or the custom of the people,
supposing indeed that these latter be admitted as
such sources. _
We have next to consider two distinctions of the
greatest importance, viz. one between the sources
from which law proceeds, the other the manner in
which it is made. Thus a law may proceed either
directly from the sovereign, or it may be made by a
subordinate legislature, with the permission, express
_or tacit, of the sovereign. In the former case it is
said to be written law, and in the latter unwritten.
Of course these terms are not related to their literal
meaning, and it would probably have been better had
Austin invented a nomenclature which would not
have been thus directly misleading. We have, indeed,
to distinguish between the words according as they
are used in their grammatical or juridical sense. In
their grammatical sense they have no meaning of any
importance for the law of our own times, hence they
may be always taken in the juridical sense as deﬁned
above. Austin gives a long and interesting series of
examples of law of each of these kinds, for which we
352 THE NATURE OF POSITIVE LAW. [XIII
may refer to the work itself.1 It will be useful, how-
ever, to have the exact words in which he states this
distinction :—
Laws are distinguished, in respect of their sources or of their
direct or immediate authors, into laws which are made directly
and immediately by the supreme legislature, and laws which are
not made directly and immediately by the supreme legislature,
although they derive their validity from its express or tacit
authority.2
The second distinction above referred to depends
on the manner in which the law is made, for it may
be made either directly, if the immediate purpose is
the establishment of a rule, or obliquely, if the imme-
diate purpose is the decision of a particular case.
It is Austin’s object to show that of these two dis-
tinctions the second is the only one that has any real
effect on law. Thus a statute made by a subordinate
judge is just as effective as one made by the sovereign
legislature, and will probably be much better; but it
is of the greatest importance, so far as the substance
of the law is concerned, whether it is made directly
or obliquely.
We now come to a matter in which Austin is
radically at variance with the views upon the making
of law explained above. It is his contention that
every law is necessarily the creation of the sovereign
power. Thus he says :—

Every Positive Law, obtaining ‘in any community, is a creel-
tion of the Sovereign or State, having been established imme-
diately by the monarch or supreme body, as exercising legislative
or judicial functions ; or having been established immediately by
a subject individual or body, as exercising rights or powers of
1 Lectures on Jurisprudence, ii. 530. 2 I bid.
XIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 353
direct or judicial legislation, which the monarch or supreme body
had expressly or tacitly conferred.1
It is clear that this is a fundamentally different
position from that which Savigny adopts. Starting
from this point of view, he proceeds to show that
positive law cannot exist apart from the sovereign
authority, however much it may coincide with custom
or legal opinion or natural law. Into the course of
this argument it will be necessary to follow him.
1. Customary Law.
The ground which he here takes up is just what
we might expect. Until the sovereign power has '
added a Sanction to the custom it is no law, and as
soon as this Sanction has been added it becomes a
law made by the Sovereign.
Independently of the position or establishment which it may
receive from the sovereign, the rule which a custom implies (or
in the observance of which a custom consists) derives the whole
of its obligatory force from those concurring sentiments which
are styled public opinion.2
Hence, as it is only morally sanctioned, it can be
nothing more than a rule of positive morality. It
escapes from this condition and is established as
positive law in one of two ways. Either it is adopted
as a rule by a legislature, sovereign or subordinate,
and is turned into law directly, or it is made the
ground of a judicial decision, and is turned into law
obliquely. In the ﬁrst of these cases there is no
doubt that it becomes Statute Law; in the second a
i 1 Lectures on Jurisprudence, 550. . 2 lbid. 553.
2 A
354 THE NATURE OF POSITIVE LAW. [XIII
difficulty has arisen, because judges in England have
never till recently professed to make law openly, but
have pretended to be merely applying a pre-existing
customary rule. “ And as the pro-existing rule which
he appears to apply is apparently the customary rule
on which he shapes the positive, the source of that
customary rule, and the source of the positive law
which he virtually establishes, are not unfrequently
confounded.“ If we follow Austin and ﬁnd positive
law there only where a Sanction is annexed, the dis-
tinction which he draws becomes perfectly clear. The
legislator enforces his rule, and the judge his decision
by a Sanction, hence it is from these authorities that
the law proceeds. And if this Sanction is the one
criterion which divides rules of law from rules of
positive morality, it is quite clear, as he says, that
those who do not adopt the above view “ confound
law with positive morality, and run into numberless
inconsistencies which they cannot possibly avoid.”2
Thus then, Law styled customary is not to be considered a
distinct kind of law. It is nothing but judiciary law founded
on an anterior custom.3
Since, however, this position, which is so clear to
Austin’s mind, has been by no means so clear to
others, he enforces his opinion by specifying certain
absurdities into which J urists of the other school fall.
Thus— _
i. If custom is admitted as positive law at all, all
immemorial customs are binding. But
this is not the case.
1 Lectures on Jurisprudence, ii. 554. 2 I bid. 2 Ibid. 555.
XIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 355
If positive law exists by virtue of custom, it
cannot be abolished except in the same way.
But customary law often is abolished by Act
of Parliament or by judicial decisions.
iii. Many of the so-called immemorial customs are
about recent inventions, as for example, bills
of exchange ; but this is a palpable ab-
surdity.
N ow, without fully examining these allegations, I
may point out that they ‘seem to rest upon a miscon—
ception as to the nature of custom, and the relation
which Customary Law bears to other law. Let us
assume for the moment that Customary Law exists as
positive law merely by virtue of the custom, and see
whether these alleged absurdities really follow. We
must ﬁrst have some marks whereby to recognise the
custom. Austin assumes that it must be immemorial,
but this by no means follows. All we should require
is that the custom has been followed so long and by
such universal consent that people have learnt to decide
their actions in accordance with it. Now primafacie
every such custom, whether immemorial or not, is
law. But, says Austin, some customs are recognised,
others are not. It might, however, be just as reason—
able to say that when Customary Law is not recog—
nised, it is for some special reason repealed. This,
indeed, brings us to the second so-called absurdity.
Customary Law is not to be repealed save by the
people who have established it. But what is the
justiﬁcation for this assertion? If we once admit that
Custom and Legislation are each co-ordinate sources
356 THE NATURE OF POSITIVE LAW. [XIII
of law, there is no reason why one should not be
sufficient to repeal the other. The last absurdity is
explained partly by what I have just said as to
the time required for the establishment of customs,
and partly by the fact that the judge is assumed only
to declare custom and not to make new law. But a
rule about bills of exchange, or any other modern
rule of mercantile law, may either be taken by the
judge from the custom of merchants, or ‘it may be
altogether invented by himself, and in the former case
there is no absurdity in saying that it is a rule estab-
lished by custom. I have thought it best to give
this explanation of these so—called absurdities, in order
to remove from this subject the prejudice which they
naturally excite.
Austin returns after this to ﬁrmer ground when
he brings forward the historical facts, that very often
the people are not in a position to get their own cus-
toms observed as law by the sovereign, and that the
customs which really are observed are introduced by
no means with the consent of the people. This, of
course, is perfectly true, but all it shows is that in
certain states of society custom does not make positive
law, and that Austin’s ideas of Jurisprudence are
adapted to a different state of society than that which
is assumed by Savigny. We have here a conﬁrmation
of the historical difference between the two, to which
I have already called attention.
2. Jus prudentibus compositum.
This is the same kind of law as that of which I
xIII] THE ENGLISH SCHOOL OF J URISPRUDENCE. 357
have spoken elsewhere as Scientiﬁc Law. Austin
treats it in exactly the same way as Customary Law.
It does not exist as law until the Sovereign, directly
or indirectly, adopts it and adds a Sanction to it.
Merely private jurisconsults, respected for their knowledge
and judgment, are not eonditores or founders of Law, although the
weight of their opinions may determine others to found it. If
their opinions determine the legislator, the inﬂuence of these
opinions is a remote cause of the Law, of which the legislator him-
self is exclusively the immediate cause, or is exclusively the source.1
But the example by which Austin supports this shows
that here, again, we must not forget the inﬂuence of
circumstances. His legislator is J ustinian, and he
says that this emperor legislated sometimes by the
advice of Tribonian, and sometimes under the in-
ﬂuence of conjugal entreaty. But to show that at a
particular period when legislation by way of Statute
isspecially active, there is no room for the law made
by jurisconsults, and to assert that this has never an
independent existence, are quite different things. At
certain times, as we have seen, custom is not admitted
to be law, and at certain times the opinion of jurists
is not admitted to be law, but this does not prejudice
their existence at other times, and a complete system
of Jurisprudence may be required to ﬁnd room for
each as sources of law. Austin sums up his view of
thetwo kinds in the following words :—

The law introduced by judges on the authority of private
jurisconsults, and the law which they make and mould upon
preexisting custom, are merely species of the same kind. Both
are judiciary law, or law introduced obliquely; and the only
1 Lectures on Jurisprudence, 561.
358 THE NATURE OF POSITIVE LAW. [XIII
difference between them lies in their causes, the opinions and
authority of jurisconsults being a cause of the one, as pre-
existing custom is a cause of the other.1
There are special reasons, indeed, why this source of
law, if such we should ﬁnally determine it to be, has
been overlooked in England. Owing to the over-
whelming power of the Sovereign, judges had to
exercise care in introducing new law. The most con-
venient ﬁction for this purpose was that they were
merely declaring immemorial custom. Hence, whether
they really adopted such customs, or followed the
authority of J urists, or made new law, they were
equally sheltered by the same ﬁction. It is possible,
however, that Austin in demolishing this ﬁction has
destroyed the element of truth it contained, and has
neglected to give due weight to inﬂuences which
might have great effect in improving the Law.
3. J us naturale.
Into the meaning of this expression, we have
already examined ; it is suﬂicient here to remark that,
whatever it may be, it is merely a model to which
positive law should conform; and even when it does
conform to it, it is law not as being natural, but as
being imposed by the ~legislator. -
There are two passages in this place in which
Austin forcibly asserts that the Sanction is of the
very essence of positive law.

There can be no law without a judicial sanction, and until a
custom has been adopted as Law by Courts of Justice it is always
uncertain whether it will be sustained by that sanction or not.2
1 Lectures on Jurisprudence, ii. 562. 2 I bid. ii. 564.
x111] THE ENGLISH SCHOOL OF JURISPRUDENCE. 359
And again, when he points out that the mere
description of a custom for the sake of exactness does
not make it law.
The description, completion, and correction of positive
morality are as much an end for which political government is
wanted, as the obtaining, by its establishment, a more cogent
sanction. But the Sovereign makes it law, not by the mere
description, but by the sanction with which he clothes it.1
We have thus arrived at the result that all Law
is, in the last resort, the creature of the Sovereign;
that it is made immediately either by the Sovereign
or by a subordinate, but that in the latter case it
exists as law by the Sovereign’s assent, either express
or tacit; and it is made either directly by way of
statute, or obliquely by way of judicial decision.
These are decided to be the only modes in which law
can be made, and hence it does not exist by virtue of
being customary, or of being in accordance with legal
opinion, or with natural law. These facts may be
reasons for its adoption as positive law, but it does
not become such until the Sovereign has adopted it
in the manner above described, either immediately or
mediately, either v"directly or obliquely. The next‘
step, then, is to consider the relative advantages of,
the direct and oblique methods of making law, for it
has been already remarked that the fact of its being
made by the Sovereign immediately, or by the
Sovereign only implicitly and by a subordinate
legislative authority immediately, is quite immaterial;
1 Lectures on, Jurisprudence, 567.
360 THE NATURE OF POSITIVE LAW. [XIII ‘
and this leads to a preliminary discussion of certain
historical methods in which the law has been gradually
‘improved. I have elsewhere emphasized the fact that
legal rules must ever be adjusting themselves to the
requirements of human relations. But where this has
not been done by the Sovereign legislature, it has
been commonly accomplished by the introduction of
a certain department of Law known as Equity. In
ancient Rome this was done by the Praetor, and the
new rules took the form of Statute Law ; in England
it has been chieﬂy done by the Court of Chancery,
and the new rules have taken the form of Judiciary
Law. Hence Equity is regarded by Austin solely as
one means of improving the law, and the particular
method employed is a matter of history. I need not
advert in this place to the more permanent meaning
which I have attempted to give to this department of
Law. It being settled, then, that Equity as a sepa-
rate kind of Law does not require to be considered,
the ﬁeld is clear for a discussion of the relative
advantages of direct and oblique legislation.
Without going into this question, which is very
exhaustively and very clearly treated by Austin, we
may say that the main distinction is as follows. The
whole art of deciding a new case consists in bringing
it under some established rule of law; when this rule
of law has been made by way of statute, we have it at
once ready to our hands. It is expressed in general
and abstract terms, and we have nothing to do but
to apply it. But when it is made by way of judicial
decision, it is not thus ready to our hands; we have
XIII] THE ENGLISH SCHOOL OF JURISPRUDENCE. 361
ﬁrst to collect it by a laborious method of abstraction
and induction from the reported cases, and then
proceed to apply it.1 At ﬁrst sight, then, it seems
obvious that a system of law which is already
expressed in abstract rules is far more useful than
one which exists very largely in reported decisions.
There are only two objections which can be urged to
counterbalance this- advantage. The rule of law if
made once for all by statute, may be badly made,
and whether it be bad or good at the time, it per-
petuates the existing state of things regardless of the
change of circumstances. The ﬁrst objection, however,
only holds on the supposition that there are no
competent persons to construct these rules, or, in
other words to make a Code, and is no objection to a
Code in general. The second objection holds good
with regard to all law which exists in a state where
there is no adequate machinery for altering it. Thus
there are many rules of judiciary law now existing in
England which no judge would ever dream of disturb-
ing. Hence it appears that the arguments in favour
of a code in the abstract are unanswerable, and that
the only question is how to ensure its success in any
given case. For this purpose we require the en-
couragement of such legal education as will produce
men competent to make a Code, and the invention of
an effective system for altering it from time to time
in accordance ‘with actual requirements.
1 See Prof. Pollock’s essay on the Science of Case Law, Essays in
J urinrudence and Ethics, chap. ix. '
362 THE NATURE OF POSITIVE LAW. [XIV
CHAPTER XIV.
LAW AND MoRALITY.
IT will be well now to consider generally the results
at which we have arrived. Our labours have so far
been devoted to a double object. I have tried to give
an account of the actual rise and progress of Law,
and I have exhibited the outlines of the Science of
Law as they have been presented by the two leading
schools of Jurisprudence of our times. The former
attempt was directed to showing that Law has in its
full course of development passed through three stages;
the latter that there are two radically different Ways
in which, as a complete system, it may be represented.
These results I will brieﬂy recapitulate.
I. The ﬁrst stage of Law is characterised by the
following marks :—
1. Adherence to custom.
2. Community of interests.
3. The power of public opinion.
Hence we have concluded that such rules as exist
are derived from an observance of actual practices ; that
these do not create Rights although they may impose
Duties ; and that they are universally observed with-
xIvl LAW AND MORALITY. 363
out the necessity for an actual legal Sanction. It
has to be remarked, however, that so far there is no
real distinction between Morality and Law. It is of
the essence of Morality that it should be practically
unalterable; but so long as all rules are derived from
custom only, and so long as men do not conceive the
possibility of departing from custom, all rules are
alike unalterable. This stage then represents the
beginning of Law when it has not yet dissociated itself
from Morality.
II. The second stage of Law is characterised by
the following marks :—
1. Abandonment of custom as the sole source of
rules.
2. Rise of private property and division of in-
terests.
3. Decay of the power of public opinion.
Hence we have concluded that rules are made no
longer according to custom, but also according to ex-
pediency; that these no longer merely impose Duties
in the interest of the community, but that they also
regulate Rights which have sprung up with the general
assent; and that they require to be sometimes sup-
ported by the power of the State. At this point
appears the distinction between Law and Morality.
The old rules, founded as they were upon custom,
carried a feeling of necessity with them; the new
rules, founded as they are, merely upon the opinion
of certain people, have no such necessity, and it is
felt that they are liable to change. The distinction,
364 THE NATURE OF POSITIVE LAW. [XIV
therefore, now exists in germ, but it has to be further
developed, and the provinces of Morality and of ' Law
deﬁned.
III. The third stage of Law is characterized by the
following marks :—
1. The increasing division of interests, and the
complication of human relations.
2. The increasing necessity for the making. of
rules.
Here then we have concluded that we require new
organs of legislation, and that these are of two kinds :
where a new rule is required to settle the conﬂicting
interests of different classes, this must be made by an
authority which’ has power to see them enforced;
hence we‘ arrive at the idea of the Sovereign as a
legislative authority: but where the rules do not in-
volve a violent contest of classes, but refer rather to
details arising from the complication above spoken
of, they can be made to greatest advantage by per—
sons versed in the Science of Law, that is, by the
J urists. Hence this third stage is marked by the rise
of legislation in two forms—
1. Legislation by the Sovereign, or Statute Law.
2. Legislation by the J urists, or Scientiﬁc Law.
Turning then to systems of Jurisprudence, we
ﬁnd that these are of two kinds, the one treating
Law as a collection of rules for the guidance of the
community, the other treating it as a collection of
commands issued by a Sovereign to his subjects.
xIV] LAW AND 'MORALITY. _ 365
The results at which we arrived may be brieﬂy pre-
sented as follows :-—— i
I. The German School of Jurisprudence.
The external marks by which Law has been de-
scribed, and by which it has been distinguished from
Morality, viz. its expression by a judge and its en-
. forcement by the State power, are more properly
treated as consequences ﬂowing from the nature of
Law than as being constituent elements in that nature.
If we look more deeply into the matter, and try to dis-
cern what-‘is the very essence of Law, we ﬁnd that no
such separation between Law and Morality is possible, ‘
but that Law is subsidiary to Morality, and consists
_ of such rules for the actions of men as make the real-
ization of the conditions of Morality possible. These
conditions have to be discovered from a consideration
of the objects of society as a whole, and of the interests
of the individual members of it. Whether, then,
they are established in a scientiﬁc manner, or whether
they are taken from current religious systems, the
function of Law is, in the ﬁrst place, to add such re—
gulation as may be necessary for their observance.
But since individual members sometimes refuse to
obey them, and since the very existence of society is
bound up with their maintenance, the same reasons
which lead to their establishment lead us also to
acknowledge that the force of the community must
be brought to their assistance where necessary. It
must never be forgotten, however, that the real basis
366 THE NATURE OF POSITIVE LAW. [XIV
of support for rules of Law is to be found in the vol-
untary compliance of the people, and that laws are in
general to be adjusted to the nature of men so as to
secure as large an amount of this voluntary compli-
ance as possible. When, indeed, resistance does take
place and force has to be applied, we must again bring
in this idea of adjustment, and remember that the
general morality will be advanced by nicely appor-
tioning the force to the case in question. It is the
nature of men to act in accordance with laws, and it
is the function of reason both to adapt the laws to
human nature and to measure accurately the force
which is necessary to secure their fulﬁlment.
It only remains then to consider the manner in
which these laws are formed.
1. Originally they are made spontaneously by the
people ; not, indeed, as rules, for it is not in this form
that they at ﬁrst exist, but by uniformity of practice.
In course of time, however, it becomes necessary to ex-
press them more visibly, and the chief organs for this
are symbolical acts, and the judgments of popular
tribunals.
2. But for several reasons it becomes expedient
to have another and more direct way of making law;
thus——
i. Customary rules often require exact and autho-
ritative expression.
ii. A change in customary rules is effected with
much difficulty if left merely to custom itself
to effect it.
XIV] LAW AND MORALITY. 367
iii. The division and multiplication of . interests
often makes it impossible for customs to
arise spontaneously.
To effect these purposes, then, legislation by the Sove-
reign is required. It is therefore the special province
of legislation
i. To express customary law in an authoritative
manner.
To adapt old institutions to new circumstances,
or replace them by new ones.
iii. To decide between rival interests.
3. But this does not exhaust the ﬁeld of legislative
activity. It is no longer possible for law to reside in
the consciousness of the people on account of the
complication of human affairs ; but it is merely trans-
ferred to the consciousness of a particular class.
Hence, just as in old times the people themselves
made new law by a change of custom, so it is now
the duty of the J urists to make new law by a change
of rules. A great part of this function has indeed
already been assigned to legislation, but this only in-
cludes those cases where the change is either abrupt
or affects rival interests. Wherever the law can be
changed by gradual adaptation to new wants, or
wherever details require to be worked out, this is
properly done by the J urists. This, however, is only
the creative part of their work; they have other func-
tions besides. Thus the general arrangement of the
whole law is a task of no little difﬁculty and one
which properly falls to the province of Scientiﬁc J uris-
368 THE NATURE OF POSITIVE LAW. [XIV
prudence. Moreover, law, as declared by the Sove-
reign, passes to the jurists to be interpreted, and here
their labour becomes in a way creative again.
Hence the work of Science may be arranged as
follows :—
i. Purely creative; as in making new rules.
ii. Purely scientiﬁc; as in arranging the law.
Intermediate between the two ; as in inter-
preting Statute Law.
II. The English School of Jurisprudence.
Here we begin with a deﬁnition of Law; and
positive law, with which Jurisprudence is concerned,
has to be distinguished from all other kinds of laws.
We discover, then, that a Law is a species of Com-
mand; that it must be supported by a Sanction, and
that it imposes a Duty. Moreover, positive law is
distinguished from other laws in that it is set by a
political superior to a political inferior. This leads
to a deﬁnition of the terms Sovereign and Subject.
Hence we have the nature of a law unfolded by the
allied terms—Command, Sovereign, Subject, Sanction,
Duty. Opportunity, however, has been taken of the
mention of Divine Law to determine the mark by
which it may be known; and as this is said to be
the pattern to which positive law should conform, we
have learnt not only what positive law is, but also
what it ought to be. Our science of Jurisprudence,
then, in spite of Austin’s assertion to the contrary, is
made to include the consideration of Law in both its
aspects, real and ideal. It is an easy transition after
xIV] LAW AND MORALITY. I ‘369
this to a discussion of how law is made. From the
deﬁnition above given it must proceed in the last
resource from the Sovereign; hence the ﬁrst distinc-
tion depends upon whether it proceeds from him
directly or indirectly. This, however, is of no practi-
cal importance, and our attention is rather directed
to the manner in which law is made. Thus the
immediate purpose of the law may be the establish~
ment of a rule ; in this case we have direct legislation
or Statute Law: or the immediate purpose may be
the decision of a case ; here we have oblique legislation
or Judiciary Law. But as the nature of this has been
often mistaken, we are told that certain so-called
sources of law are not sources really, but only reasons
which lead to the making of law in one of the above
ways. Thus custom, the opinion of lawyers, and
natural law, are not in themselves sources of positive
law. This is often founded upon them, but it be-
comes positive law by the decree of the Sovereign,
or the decision of the judge.
We have also noticed that upon Austin’s theory
the Sovereign is not bound by the Law, because
binding implies superior force. This, however, is
in general contradicted by the usages of civilised
societies, and we have seen that Ihering does not
admit that Law has attained its full development
until it has become practically binding alike on
Sovereign and Subject. This bilateral obligation is
secured partly by the selﬁsh fear of the Sovereign
combined with the feeling of Right that grows up in
the community, and partly by the guarantees implied
in the regular administration of Justice.
2 B
370 THE NATURE OF POSITIVE LAW. [xIv
From these two systems, and from all that has
preceded, I shall now attempt to extract those ultimate
ideas upon which the Science of Jurisprudence may
most properly be made to rest.
Rules of morality and rules of law are alike con-
cerned with controlling the actions of men. In
entering, then, upon the science which deals with
the latter, we must ﬁrst consider in what relation
these two stand to each other. Austin distinguishes
them by the Source from which they proceed, and
the Sanction by which they are enforced. I shall
try to accomplish the same task by considering the
departments with which they respectively deal.
Society is composed of individuals who are en-
dowed with energy, and who are capable of pleasure.
I suppress the mention of pain here, and in what
follows, because it may be regarded as negative
pleasure, and the sum-total of pleasure consists in
the balance of positive pleasure over pain. Now
the ultimate object of all rules is to secure to each
individual the largest amount of pleasure, and as this
in its turn depends chieﬂy upon the amount of
. energy that can be called forth, we may say that the
immediate object is, as a rule, the development and
advantageous -employment of energy. A little con-
sideration will make this clear. Let us enquire ﬁrst
in what energy and pleasure consist. The energy of
a person is of various kinds, and may be conveniently
classed as physical, mental, and emotional. All that
energy which results from a robust body, and from
bodily training, is called physical; all that which
XIV] LAW AND MORALITY. 371
results from the development and education of the
intellectual powers is called mental; and all that
which results from a proper condition of the feelings
is called emotional.
Pleasure again consists—-
1. In the mere possession or employment of
energy by ourselves or others.
2. In the material results obtained by the employ-
ment of energy.
3. In the use of things which can be obtained
without the expenditure of energy.
But as this last class includes but a small portion
of the whole pleasure enjoyed by man, it will be safe
to say that this varies directly as the energy that is
applied by individuals. The object of all rules may
then be said to be twofold——
1. To develop/L and apply energy—physical,
mental, and emotional.
2. To divide among the individuals the sum-total
of pleasure thus obtained.
We shall ﬁnd that up to the present time rules have
been content to attain the ﬁrst object; the second
has in general been left to attain itself.
Let us consider, then, brieﬂy the rules which have
been discovered for developing and applying indi-
vidual energy. These are of various kinds; thus we
have—
- 1. Rules designed to develop and maintain
energy.
2. Rules designed to call energy into action.
372 THE NATURE OF POSITIVE LAW. [XIV
3. Rules designed to promote the effectiveness of
energy.
We must distinguish, moreover, according as the rule
is addressed to the individual whose energy is in
question for his own guidance; or to others in order
to determine their conduct towards him. We may
then treat of these rules in order.
1. Rules designed to develop and maintain energy.
a. Physical energy.
i. Those addressed to the individual.
These include all rules which have for their chief
object the maintenance of bodily strength; hence
they include in particular the rules which inculcate
the virtues of temperance and chastity.
ii. Those addressed to others.
Such as forbid assault, murder, or other bodily
injury.
b. Mental energy.
i. Rules addressed to the individual.
Those which enforce diligence in the cultivation
of the mental faculties and in the acquisition of
knowledge.
Rules addressed to others.
As mental energy can hardly be injured by the
acts of others no rule need be speciﬁed here.
0. Emotional energy.
i. Rules addressed to the individual.
As it is by the emotions that men are chieﬂy
guided it is important that these should be of a
right kind, and should exist in great strength. In
XIV] LAW AND MORALITY. 373
particular, the special emotion known as the approval
of conscience ought to regulate the whole actions of
the man. It has been commonly held, though, that
the emotions depend more upon the circumstances in
which an individual has been placed than upon his
own will; the rules, therefore, which exist on the
subject are very vague. Their general object is to
restrain the individual from putting himself in cir-
cumstances in which the emotions will lose their
purity or their force.
ii. Rules addressed to others.
These forbid all actions which tend to corrupt
or destroy the right emotions in others.
So far we have considered the individual as able
to maintain and develop his own energy; but this
is far from being universally the case. We have
therefore to consider further some subsidiary rules.
These are all addressed to others on behalf of the
individual, and they differ from the previous rules
of the same kind in that while those required forbear-
ances only, these require acts. The most important
case in this connection relates to children.(/ Thus
they require to have their faculties physical, mental,
and emotional developed and trained by others, and
in seeking who these others shall be, numerous reasons
concur in pointing out the parents as the most suit-
able persons. We may arrange this and other cases
as follows :—
Rules for the maintenance and development of
energy in individuals who require assistance.
374 THE NATURE OF POSITIVE LAW. [XIV I
a. Children.
Rules which require the parents to afford them
proper physical, mental, and emotional
training.
b. Aged people.
This is the converse, of the last case. I The
children in like manner are required to give
physical support to aged parents.
0. Adults.
There is a moral rule requiring charity to be
given to alleviate physical want, and we see
the germs of similar rules, with regard to
mental and emotional wants, in various
efforts of the present day.
2. Rules designed to call energy into action.
Rules of this kind are direct and indirect. A
direct rule is that which inculcates diligence
and forbids idleness ; this, however, has
never yet been found sufficiently efficacious,
and it is enforced indirectly by the institu-
tion of private property. The foundation
of this is the principle that each man shall
have the results of his own labour, and the
institution is maintained by the rule against
theft.
3. Rules designed to promote the effectiveness of
energy.
Here we have two conﬂicting principles. It
has been abundantly shown that individual
energy is most effective when it is allowed
XIV] LAW AND MDRALITY. ’ 375
to develop and exert itself in its own way;
at the same time, in nearly all departments
of labour, it is necessary that individuals
should combine together, and that one
should render services to another. These
requirements are reconciled by allowing
each individual full freedom before entering
into a contract, but enforcing its performance
when once entered into. Hence we have
the moral rule enforcing ﬁdelity between
individuals in their engagements.
The rules which I have so far laid down are
designed to develop as much energy, and consequently
obtain as much pleasure, as possible. We have still
to consider those rules which relate to the distribu-
tion of this pleasure. A large part of it we at once
see is already disposed of. Thus it is impossible to
distribute pleasure which results from the bodily health
of an individual. The amount of pleasure which really
can be distributed is of two kinds. It consists in
things and in acts, or, to use Bentham’s term, in ser-
vices. It must be noticed that the services here
mentioned are such as are in themselves sources of
pleasure, and not meant merely to procure it; of these
latter I have spoken just above. The object, then, is to
devise rules by which the pleasure to be derived from
things and from services may be distributed among
the community. We will consider these in order.
There is no doubt that inasmuch as pleasure often
consists in the satisfaction of want, the greatest sum
376 THE NATURE OF POSITIVE LAW. [XIV
of pleasure for each individual would be obtained if a
distribution was made according to the wants of each.
This, however, has never been found possible in
practice. The nearest approach to it is the principle
of equality, and this, as I shall immediately show, is
but rarely appealed to.
1. Distribution of things.
This is already practically settled by the consider-
ation speciﬁed above. The energy of each individual
is only fully evoked if he has himself the fruit of his
labour. This principle lies, then, at the base of the
distribution of property, and there is little room for
any other to be introduced. Sometimes, however,
when we have satisﬁed this we appeal to the principle
of equality. Thus the estate of an intestate is divided
equally among the children. It is restricted to the
family, for this represents the original owner; it is
divided equally, for no one child has a better claim
than any other. It is probable, however, that neither
of these principles, that of giving each man the fruit
of his labour and that of securing equality of distri-
bution, has yet attained its ﬁnal position.
'2. Distribution of Services.
This is determined entirely by the principle of free
contract laid down above. The acts are personal to
the individual ; he will not train himself to perform
them unless he has full control over them. Hence he
distributes the beneﬁt of them amongst others in the
way he pleases.
Thus we see that the distribution of pleasure
rests chieﬂy on the one principle, that each man shall
XIV] LAW AND MORALITY. 377
reap the reward of his own energy; and when this \‘
becomes incapable of application it is supplemented
by the principle of equal division.
Starting, then, from the fact that society consists
of a number of individuals endowed with varying
energies and capable of various pleasures, and from
the principle that the object of all actions should be
to secure, by means of these energies, the greatest
amount of pleasure, we arrive at the foundation of
rules of morality, and see how a natural classiﬁcation
of them suggests itself. A little further consideration,
too, will show us the proper province of positive law.
It must be noticed that I am assuming for the present,
that rules of morality are observed without the necessity
for a legal sanction, whether the individual be actuated
by fear of man, or fear of God, or by his own sense of
rectitude. It will be time enough, later on, to dis-
cover how these“ can be further enforced. I now wish
to determine the domain of positive law, on the sup-
position that it consists of rules not of commands, and
that these require no legal sanction to enforce them.
The position I am taking up will be at once apparent,
if we observe that all the rules of morality may be
assumed to be known, and yet that the best disposed
individual may often be in doubt as to how he is to
observe them. The rules of law, then, are intended
to supply that information which is essential to be
known before the rules of morality can be observed.
When we say, generally, that theft is forbidden and
contracts are to. be fulﬁlled, we by no means make the
path of duty clear. The questions arising from the
378 THE NATURE OF POSITIVE LAW. [XIv
complicated division of property, and from the different
degrees of strength attributed to agreements, as well
as from other matters connected with them, call for
some deﬁnite regulation. With the greatest regard for
private property, we must still have rules for its divi-
sion, its assignment, and its devolution; and with the
greatest respect for agreements, it is necessary to sepa-
rate hurried and perhaps provisional promises from such
as are entered into deliberately. Apart, then, from
the question of whether Law requires a sanction or not,
we ﬁnd that it has a proper and permanent sphere in
the regulation of property and contract. But this is not
all. I may be quite unwilling to violate Morality by in-
ﬂicting wilful injury on my neighbour, and yet I may
unwittingly ‘do so by a neglect of sanitary precautions.
Hence We see that to each of the great rules of ~
morality which protect the person, the property, and .
the contracts of the individual, we have a whole
department of positive law added in order to supple-~
ment them and make their performance possible. ~
\Ve saw, moreover, that in addition to those moral
rules which require forbearance from interfering with
"3, the individual, there are others which impose the duty
of lending him active aid. But since it is difficult to
secure this object by private charity merely, experience
shows that these rules may properly be carried into
effect by the State and the cost apportioned among the
members of it. Hence we have the whole system of
Poor Laws, of Education Laws, and of Ecclesiastical
Laws, ministering as they do to the physical, the
mental, and the emotional requirements of the people.
XIV] LAW AND MORALITY. 379
Of course the possibility of dispensing with a
Sanction as regards these rules of law springs from
the desire of each individual to obey the great moral
rules. The rule against theft includes also a rule
enforcing an observance of legal regulations regarding
property: the rule inculcating ﬁdelity and truth
includes the observance of all legal rules as to the
fulﬁlment of contracts. The rule forbidding injury to
another includes the compliance with all legal regula-
tions affecting the health of the community. Hence
so long as the various inﬂuences that work upon the
individual are such as to incline him to keep all the
moral rules, he will keep all the legal rules as well,
provided, that is, that he has conﬁdence that those
who enact the legal rules are ﬁtted to do so. In this
case we have Morality and Law existing side by side,
and their domains are perfectly distinct.
It must be remembered, however, that these do
not exhaust the actions of mankind. Of these some ,
are governed by the moral rules, assisted, as I have
shown, by the legal rules ; but there remain over and
above a vast number of actions which are classed
as indifferent. In these the individual has to calcu-
late directly the advantages and disadvantages to '
himself and others of a proposed line of action and
to decide accordingly. While, then, utility is the
ultimate test of all actions, it is the immediate test
of only the last kind. _
Thus we see that the rules of morality concern
large classes of actions which affect powerfully the
welfare of humanity; they are arrived at by the
380 THE NATURE OF POSITIVE LAW. [XIV
gradual experience of the race, assisted by those far-
seeing intuitions of great moral teachers, which are
the highest marks of genius : at a later time Science
comes in and, as a rule, ratiﬁes them. The rules of
law, again, strive to bring order into the complicated
relations of human beings, so far as their property,
their contracts, and other interests suitable for legal
regulation are concerned. They do not interfere
with the rules of morality, but simply provide a
clear ﬁeld within which this last may work. I am
perfectly willing to observe the rights of property
belonging to others, but I must ﬁrst know what these
are ; and to fulﬁl my contracts, but I must have the
effects of these, so far as they concern various parties,
determined. A rule of law is determined at ﬁrst by
the experience of a small part of the human race, and
is embodied in custom ; it is afterwards collected from
decisions founded upon the direct sense of what is
right; it is then declared by statute according to
principles of justice or expediency; and it is ﬁnally
taken up by Science, and adapted more and more to
the necessities of life.
It may be said, indeed, that men are connected
with their fellows not only in matters which are
regulated by law, but in many other ways. Thus
the business which an individual takes up affects not
only himself but the community at large; why not
then subject this to legal rules? Of course these
matters have been in the past subjected not only
to legal, but also to moral rules. Where distinctions
of caste have arisen out of trades, and where it is
XIV] LAW AND MORALITY. 381
immoral to lose caste, the occupation of the indi-
vidual is determined by moral rules ; and where
the home of a labourer is determined by law, and
it is illegal for him to change it, there his occu-
pation is governed by legal rules. But the sphere of
legal and moral rules is continually changing. That
which is determined by Morality in one age, is deter-
mined by Law in another, and in a third is left to
the discretion of the iii/dividual. The result of experi-
ence is that the energy of i the individual, and there-
fore the welfare of the community, is best developed
under conditions of freedom, Hence such matters as
the above speedily pass out of the domains both of
Morality and of Law, and are left to the individual will.
The rules of morality are made as few and simple as
possible. An individual of good character will observe
them because of his natural disposition and because he
is acquainted with them. But the complexity of the
relations that arise with the increase of society is
such that the individual has not the requisite know-
ledge to see his way. Human affairs cannot go on
unless some one steps in to decide the matter. Where,
then, immediate knowledge of rules fails, the province
of Law begins. It is, however, only introduced where
grave evils would follow from the absence of it. The
necessity is ﬁrst felt with regard to property. Here,
unless ﬁxed rules are introduced, quarrelling and blood-
shed will soon arise. When, again, Law ﬁrst takes con-
tracts in hand it does nothing more than enforce a
rule of morality; but as the 'mercantile relations of
men increase in complexity it goes much further. In
382 THE NATURE OF POSITIVE LAW. [xIv
the modern world many cases arise in which all parties
are anxious to fulﬁl a contract, but they want to
have a rule as to the many interests affected by it.
Beyond this, however, the liberty of the individual
is not fettered, and though in everyday life we have
cases of the greatest difficulty and affecting many
interests, yet since in these there is no such necessity
for uniformity of decision as in property and contract,
the Law refuses to interfere, and the matter is left to
the discretion of the individual.
Even, then, before there is any necessity for a
legal sanction, we are able to assign perfectly distinct
spheres to Morality, to Law, and to the individual
will. So long, indeed, as Morality and Law exist in
custom only, it is diﬂicult to distinguish them, but
when once they come to be expressed as rules, the
distinction which I have been pointing out begins to
be apparent. We may sum up these results, then, as
1 follows :—
1. There are certain classes of actions which affect
directly and obviously the Welfare of the
individual and the community. These are
governed by a few simple rules which every
man may know. These are the rules of
morality. Owing, however, to the complica-
tions which arise from the collection of
individuals in large societies, it often be-
comes impossible to know how to act in
accordance with these rules; hence we re-
quire a large number of subsidiary rules to
be laid down. These are the rules of law.
XIV] LAW AND MORALITY. 383
2. There are other actions whose effect upon the
community has not yet been decided, either
because it is impossible to classify them, or
because opinion is divided upon the effect
of any given class. These, therefore, are left
outside the domain of rule entirely; they
are governed solely by the discretion of the
individual.
An example will make this division clear. A man
builds a house and introduces a new system of drain-
age. If he lives in the country, this is a matter
which probably is left entirely to his own discretion ;
but if he lives in a town, we now have to consider
how this will affect others. It is known that the
system of drainage has a direct effect upon the health
of the population, hence it is a matter which cannot
be left to the individual’s discretion. As he may be
injuring his neighbour’s health we must get the best
opinion possible as to how this is to be prevented, and
this opinion the system of sanitary laws in force in
the town ought to represent.
The whole matter, then, may brieﬂy be put as fol-
lows. When we consider all the actions of mankind
the tendency of certain large classes is seen to be
beneﬁcial or the reverse ; the tendency of other large
classes has not been ascertained, and we have a vast
residuum of isolated actions which cannot be classiﬁed.
Actions of the ﬁrst class are accordingly governed by
moral rules; actions of the second class are left to
individual discretion. Of these moral rules some
demand forbearances from interfering with others;
384 THE NATURE OF POSITIVE LAW. [XIV
some demand active aid in support of others. We
may, therefore, divide them into moral rules requiring
forbearances and moral rules requiring acts. It must
be noticed, however, that this distinction is not exact
if carried out into details; thus the rule which requires
me to forbear from injuring my neighbour’s health
may require the doing of a certain act, as the laying
down of a drainage pipe. Many of the moral rules,
again, requiring forbearances cannot be fulﬁlled pro-
perly until exact knowledge is obtained as to the
effect of certain acts, or until the relations between
individuals have been deﬁned ; and many of those
requiring acts must either be supplemented by similar
knowledge or else can only be properly performed by
means of combined action. Hence we have the following
arrangement of the different departments of law :—
1. Rules requiring forbearances.‘
a. As to health. Sanitary Law.
b. As to property. Property Law.
2. Rules requiring acts.
a. Acts of individuals alone. Contract Law.
b. Acts of individuals in combination.
i. Poor Laws.
ii. Education Laws.
iii. Ecclesiastical Laws.
Moreover, now that we have introduced law and com-
bined action, we must have means by which the law
may be made and ascertained, and an organisation by
which combined action can be carried on; this leads
us to the formation of the State with its legislative,
judicial, and administrative functions. All these are
xrv] LAW AND MORALITY. ' 385
subjects for regulation, and hence we obtain the sys-
tem of rules known as Constitutional Law.
We have thus deﬁned the province of Law, and
divided it into various departments, without advert-
ing to the ideas of Command and Sanction, and
the only idea which we have introduced is that the
affairs of society require in many points regulation.
We suppose, then, that the rules thus formed are
obeyed by the community naturally, i. e. without
the necessity for a legal sanction, but as this state
of things is a mere abstraction, being arrived at
only by dropping many of the facts of real life,
it may be proper to contrast it brieﬂy with the
abstraction used by Austin. At the basis of his
system of Jurisprudence he places, as we have seen,
a Command issued by a Sovereign to his subjects and
enforced by a Sanction. The objection to this is that
no Sovereign in a modern community is able to enforce
his commands if the Sanction has to be called in to
his assistance frequently; if, that is, the number of
people who only obey his command through fear of
the Sanction form a considerable portion of his sub-
jects. The idea which I am suggesting in place of r
the above is, that a law is a rule explanatory of
rule of morality, ascertained by proper authority, and
resting upon the assent of the community. The ob-
jection to this, on the other hand, is that no law is -
safe if left merely to the assent of the community,
but that to produce security it is necessary for it to
be enforced by a Sanction. The element of fact,
then, which Austin drops in order to arrive at his
2 C
386 THE NATURE OF POSITIVE LAW. [XIV
abstraction is, that the power of the Sovereign is
limited, and that Law rests really upon the assent of
the people; the element of fact which I have dropped
is, that Law cannot be maintained universally without
a Sanction, and that it is not always coincident with
a rule of morality.
The following reasons may be suggested for pre-
ferring this abstraction to the former :—
1. It represents a state from which Law originally
sprang, and to which with the advance of civilisation
it tends to return. Austin’s abstraction corresponds
closely to certain historical conditions of Law, but as
the desire for conquest dies away, nations more and
more recede from this condition. So far, then, as an
abstraction can have any inﬂuence on the progress of
Law, Austin’s is to be rejected, because it approaches
more nearly to truth as the condition of a nation
recedes in point of order and civilisation.
2. It approaches closely to the idea upon which
German jurisprudence rests. The State is, indeed, a
regulative power, but its sanction is not an essential
point in Law, any more than physic is essential to
health of body. We may say, continuing this meta-
phor, that Austin’s abstraction supposes a perma-
nently unhealthy condition of society. The one
which I am suggesting supposes a healthy condition
to start with, and only introduces a correction where
the contrary is the case.
3. It has always been felt as one great objection
to Austin’s system that it denies any position to
International Law as such. By the abstraction I am
XIV] LAw AND MoRALITY. 387
suggesting, this objection is done away with. There
are, indeed, rules of morality simply which must be
observed by nations if peace is to prevail, but, apart
from these, there are many matters of property, of
contract, and of administration, which require to be
governed by positive rules. These form the proper
subject of International Law.
4. Although we are not directly concerned here
with questions of Morality, yet it may be proper to
point out that Austin’s use of this term is open
to the gravest objections. A more conventional rule
upon a frivolous matter of etiquette cannot, except
by an absurd misuse of language, be called a rule of
morality, and any deﬁnition which makes this neces-
sary is open to the charge of classing things according
to mere external marks without any regard to their
essential nature. Rules of morality are those rules
upon whose observance depends the very existence of
the individual and society, and it is to explain and
enforce these that Law exists.
It may be difficult to bring all legal institutions
under rules of morality in the way I am suggesting;
and, in particular, there are many rules which are
merely meant to secure due order in the numerous
relations of a populous community. This fact, how-
ever, will constitute no infringement of the principle
if we remember that this very order is oneof the ﬁrst
conditions of the welfare of society. I do not pretend
to have given more than a sketch of the matter, but
I think there is at least some value in a theory
which regards Law as springing from and realising
388 THE NATURE OF POSITIVE LAW. [XIV
Morality, and which must‘ therefore tend to bring it
more and more into harmony with the opinions of
the people. '
The question of the Sanction as being a con-
stituent element in Law "has been recently alluded to
by Sir Henry Maine. I have said enough elsewhere
about the necessity that gradually arises for organis-
ing the State power 'in order to enforce the Law,
and, of course, it is denied by no one that Force
must always be at hand when it is required. It will
> be clear, however, from all I have said, and from the
prominence which I have assigned to the views of
certain German J urists, that I am unwilling to look
upon force “as the motive power of Law.” 1 . That it
is so at certain times, times of conquest and disorder,
is certainly true, but I am inclined to regard this as
exceptional and as by no means guiding us to the
correct view of its proper function. We are told,
indeed, that “ the great difﬁculty of the modern
Analytical J urists, Bentham and Austin, has been to
recover from its hiding-place the force which gives its
sanction to Law. They had to show that it had not
disappeared and could not disappear ; but that it was
only latent, because it had been transformed into law-
abiding habit.” 2 But I cannot help agreeing with
the view I have above quoted from Ihering, accord-
ing to which he does not consider Law to have existed
in its true form until this law-abiding habit on the
part of both Sovereign and Subject was formed.
That in the course of this formation Force came often
1 Early Law and Custom, 388. 2 I bid.
XIV] - LAw AND MoRALITY. 389
to the front, and Law frequently took the shape of a
mere command, is true so far as the historical de-
velopment of Law is concerned, but there is no need
to retain this position for Force when Law has once
arrived at its proper height. It must not be forgotten,
too, that Force has been rendered necessary no less
by unjust laws on the part of Sovereigns than by illegal
acts on the part of Subjects. The question, indeed, is
merely this :-—every abstract idea of Law must drop
some of the facts of life; shall we adopt one, then,
which will exercise a continually depressing inﬂuence
on the real value and position of Law, or one which
represents an ideal to which all civilised communities
have, with some closeness, approximated’.Z For my
part, I have no hesitation in adopting this latter
course. It is for history to show how Force has
gradually become subject to Law, but when this has
once been effected it is important so to deﬁne Law as
to place it in a position of authority, using Force
sometimes of course, but only as its servant and for
the sake of securing its realisation where necessary.
It will not be denied, indeed, that the great
security for all Law is that it rests upon the general
assent of the community. It may require a legal
Sanction sometimes for its enforcement, but without
this general assent it cannot, as a rule, even exist.
390 THE NATURE OF POSITIVE LAW. [Xv
CHAPTER XV.
THE SOURCES OF LAW.
THE next point, then, is to discover how this general
assent as to Law, of which I have just spoken, can be
ascertained, and here we at once come upon what
seems to German J urists the original, and in the last
resource the only proper source of Law. The general
assent of the people cannot be better ascertained than
by their common adoption of the same practices;
hence the ﬁrst object of Law is to observe these com-
mon practices and express them in rules; in other
words, Custom is the original source of Law. We
cannot, however, adopt this position without account-
ing for the special reasons which led Austin so de-
cidedly to reject it. These may be seen partly in
the idea upon which he founds all Law, and partly
on the special circumstances attending English Cus-
tomary Law. Thus, if every law is to issue from the
Sovereign, it is clear that a custom cannot be law
until it has obtained the Sovereign’s express sanction,
either by way of statute or of judicial decision. V ,
Again, the actual decisions of English judges, although
they pretended to be founded on custom, yet were,
as a rule, made in a very different way. We need
xv] THE soURcEs or LAW. 391
only point to the complete disturbance of ancient
custom which was effected by the Norman Conque%1
Custom, after this, was not adopted by the judges as ,
law merely as being custom, but in those cases only
where they saw no reason to refuse validity to it. It
must be remembered that custom can only be a source
of law when it affects a homogeneous community,
or portion of a community; as soon as conﬂicting
interests arise its power is gone. But the Norman
Conquest broke up what homogeneity prevailed among
the Saxons. A judge had now to consider whether
the custom by which he was asked to decide conﬂicted
with the interests of the conquerors, and if so, he
probably replaced it by a rule of Norman law. Only
in the case of its affecting the subject race merely
was there any chance of its being adopted. So great,
nevertheless, was the respect paid to custom as a
source of Law, that it was long held to be the only
source from which judge-made law was taken, and a
rule of Roman law, taken secretly from the Digest,
was only held valid on the supposition that it em-
bodied ancient custom. The real objection to custom
as a source of law need not, then, go the length
of abolishing it altogether, although, as a matter
of fact, it has never been properly a source of law
in England. But this is merely due to the fact that
Law in England has so nearly approximated to
Austin’s idea of it; it has really been the Command
of a Sovereign supported by a Sanction, or rather it
1 Perhaps, however, this was not so great as I have assumed. See
Pollock’s Essays in Jwispmdence and Ethics, p. 215.
392 THE NATURE or POSITIVE LAW. [xv
was so at the time when Customary Law would have
been chieﬂy useful ; for it must be remembered that
this is only a possible source of Law under certain
conditions, and in modern communities these condi-
tions are almost entirely wanting. We may, indeed,
still discover customs aﬂ'ecting particular places or
particular classes, but it is quite impossible for a
customary law now to grow up throughout a nation.
Finally, we may say that if we allow Law to be a rule
made by competent authority, and resting upon the
assent of the people, nothing can be clearer than that
the most competent authority is the people them-
selves, and hence Custom is the original and at cer-
tain times the best source of Law. It may be hard,
perhaps, to shake oﬁ the idea of Austin that a custom
cannot be law till expressed to be so by a tribunal,
but when we remember that it proceeds not from the
Sovereign but from the people, we see that‘ the
tribunal has no other means of knowing the law than
any one else. We must, indeed, have some marks~
by which to distinguish custom ; it must be observed
with a certain amount of universality and for a cer-
tain time, but when these are determined, it can be
a rule to guide the conduct of men just as much
before it has been acted on by a tribunal as after-
wards.
The fact, then, is, not that custom is no source of
Law, for where the history of a race has not been
disturbed by conquest it is its original and proper
source ; but that, as the people increase in numbers,
it becomes an inconvenient source of Law from the
xV] THE SOURCES OF LAW. 393
difficulty of determining it, and, as they become more
separated in interest, it becomes, in general, an im-
possible one from the difficulty of a spontaneous
reconciliation of these interests. We have, therefore,
to enquire in what other way rules of law can arise
which shall rest upon the assent of the people, and,
following Savigny, we ﬁnd that we must have re-
course to Legislation or to Science. Let us enquire,
then, what these mean. It will be convenient to
consider law-making as of two kinds, each of which
has its origin in the failure of customary law on
different grounds.
1. Custom may fail to establish a law on account
of the conﬂict of interests. Here the most natural
course is to allow to all interests due weight in a
common assembly, and to decide after a consideration
of the balance of advantages.
2. Custom may fail to establish law on account of
the complication of interests. Here the most natural
course is to entrust the making of law to persons pos-
sessing the following qualiﬁcations :—
i. An exact knowledge of the interests involved.
ii. A practical acquaintance with the wants of the
people.
Rules of Law made in the former manner are
made directly by the Sovereign. Rules of law of the
latter kind are made directly by J urists.
As soon, however, as we take the making of law
out of the hands of the people themselves, there is a
possibility that the result may not obtain their
general assent. , For it will be seen that law-making,
394 THE NATURE OF POSITIVE LAW. [Xv
whether by the Sovereign or by J urists, will now
have one of the following objects :---~
1. It may be merely an attempt to express clearly
the actual practices of the people. Here it only
pretends to declare custom.
2. It may be an attempt to effect changes which
are indeed desired by the people, but the details of
which have to be discovered. Here the object will
be to divine as correctly as possible those rules which,
when put into practice, will win the assent of the
people. '
In this latter case there must be some principle
upon which the making of new laws is to proceed;
but this can only be derived from a consideration of
what is that quality in old laws which has won for
them general assent. Ancient jurists, if the question
had been put to them in this form, would have
replied that it was their conformity with the Law
of Nature; of the real meaning of this as a principle
I have already stated my opinion. Modern enquirers,
on the other hand, will say that it is in virtue
of the fact that they have apparently secured the
greatest happiness for the greatest number. It is
upon this principle, then, that Law must be made
when we have to divine beforehand how to win for it
the assent of the community.
Before carrying these ideas any further it will be
well to consider two disturbing inﬂuences in con-
nection with law-making. We have seen that all
actions are either governed by moral rules or left to
the discretion of the individual; and, moreover, that
Xv] THE SOURCES OF LAW. 395
the moral rules often require to be supplemented by
rules of law; these are really of the nature of rules
explanatory of rules of morality. We may say, too,
that the rules of morality, so far as we can see, are
customary rules proper; for whatever may be their
actual source, they derive their real validity from the
fact that they commend themselves to the good sense
of the community. It is not denied, of course, that
in some cases the Morality of a community is im-
posed by commands, in the same way as is sometimes
the case with Law, but this seems to occur only by
way of exception. Rules of law, again, so far as
they arise by custom, are hardly to be distinguished
from the rules of morality which they explain; but
when, later on, they are produced by Legislation or
by Science, we see that they also derive their real
validity from the fact that they satisfy the general
wishes of the people. There still, moreover, remains
the sphere of individual discretion which is outside
the domain of Law entirely. I shall now examine
the changes made in the condition of Law by the
following disturbing facts :—
1. There are many individuals who fail to observe
the ordinary rules of morality.
2. There are Sovereigns who have other objects
in view than to frame laws which shall win the
general assent of the people. These objects may
be-—-
i. Selﬁsh. Here they wish to secure beneﬁts for
themselves at the expense of the people.
Benevolent. Here they cannot trust the people
//
396 THE NATURE OF POSITIVE LAW. [XV
to know what is best for their welfare, but
lay down laws according to their own
ideas.
A Sovereign of the former class is usually known
as a tyrant; one of the latter as a paternal despot.
I need hardly remark that I use the term Sovereign
as deﬁned with so much care by Austin.
The ﬁrst of these considerations leads us to the
whole department of Criminal Law; the second
shows us Law as deviating from that quality which
we have attached to it, conformity with popular
opinion. Of these, then, in order.
1. I have already enumerated the chief rules of
morality, and we have seen that they are founded on
general practice. When, therefore, the State power
has to be called in to assist any of these, it makes
no new rule, it simply adds a sanction to an existing
moral rule. Hence we see that Criminal Law is
altogether adjective; it provides means by which
violations of certain moral rules may be discovered
and punished, but it does not add anything to the
moral rules themselves. It is, however, a very im-
portant part of the Science of Legislation to deter-
mine which of these rules ought to be thus enforced,
and in this connection we have to notice two
points :—
i. Is the moral rule received with sufficient
generality?
Is it expedient to enforce it with a Sanction?
In considering the ﬁrst we must avoid a possible
mistake, for a moral rule may be properly enforced
XV] THE SOURCES OF LAW. 397
if it is accepted only by the vast majority of the
people, since it may then be said to rest upon their
assent. Thus the moral rules which we are new con-
sidering correspond to a certain extent with Austin’s
rules of positive morality; it is not necessary that
they should be accepted by every one, but it is neces-
sary that the minority who reject them should be so
small as to be practically insigniﬁcant.
As to the second, there is a well—known distinc-
tion which is usually allowed to have much weight.
The violation of certain moral rules does immediate
harm to other persons than the violator; these are
properly enforced by a legal sanction. The violation
of other moral rules does harm immediately to the
violator and only indirectly to others; as to these
there has been much doubt, and till recently the
tendency has been to leave them to the ordinary
sanctions of morality upon the following grounds :—
a. They are of such a nature that their discovery
and punishment is frequently very difficult.
I). Since the general interests of morality are best
advanced by leaving individuals to some
extent at least to their own discretion, it is
clear that this is most conveniently done
when the immediate harm due to the viola-
tion of morality falls upon themselves.
2. We have next to consider these variations in
Law, as deﬁned above, which are due to a selﬁsh or
to a benevolent Sovereign.
Now assuming that Law in its normal state is
known by the mark of conformity with popular
398 THE NATURE or‘ POSITIVE LAW. [xv
wishes, and that the three possible provinces of Law
are morality, law, and discretion, as deﬁned above,
we ﬁnd that the abnormal laws made by a selﬁsh
Sovereign belong more to the domains of law and
discretion; those made by a benevolent one to the
domains of morality and discretion. Thus a selﬁsh
Sovereign arranges the law of property to suit his own
interests, and invades the sphere of discretion to stiﬂe
the spirit of liberty, while a benevolent Sovereign
enunciates what he conceives to be superior rules of
morality, and clothes them with a sanction, in order
to raise the manners of the people, and issues rules
controlling their discretion for the sake of guiding
them. It is clear that all such laws rest upon the
fear of the sovereign power, and it is because actual
governments have so often been of the former kind
that Austin made so much of the Sanction as an
indispensable part of Law. I have, however, tried to
show that this is only necessary-—
i. In case of exceptional defect in the individual.
ii. In case of exceptional variation in the nature
of law.
In the former case the sanction is necessary in
order to control an evil—disposed individual.
In the latter case, the sanction is necessary in
order to control a well-disposed individual for one of
the following reasons—either,
a. A new rule of morality is laid down contrary
to his own idea of what is moral ; or
b. A new rule of law is laid down which seems to
him subversive of the principle on which
XVI THE SOURCES OF LAW. 399
the corresponding rule of morality is
founded; or
c. A new rule of law is laid down which merely
controls his discretion.
It is not, of course, asserted here that a benevolent
government is in itself bad, though this may certainly
be affirmed of a selﬁsh government. The whole tend-
ency of legislation at present, however, is to remove
those anomalies in the law which have been imposed
by selﬁsh governments in the past, and the question
now is rather as to the advantage of benevolent govern-
ments. I have laid down the principle that Law in
its normal state conforms to the wishes of the people ;
and that, as a rule, a new law will satisfy this test
if it secures the greatest happiness for the greatest
number. It is quite possible, however, that a people
may not at once perceive what is for their greatest
happiness; in this case the Wisdom of abnormal legis-
lation by the sovereign will depend upon the following
considerations :---
i. The probability that the sovereign is really
wiser in this matter than the body of the
people.
ii. The evil that will ensue from the extensive
enforcement of the law by sanctions.
iii. The damage that will be done to the permanent
character of the people by an interruption
in its free development.
It must be noticed that when we speak of a bene-
volent government the term is simply a relative one.
Every government, it may be said, ought to partake
400 THE NATURE OF POSITIVE LAW. [XV
of this nature, and I use the term to denote one
which professes to be very much in advance of the
people. Thus the British government, with refer-
ence to India, is a benevolent government; with
reference to England, a popular government. It is
to be noticed, too, that the mere attempt to enforce
acknowledged rules of morality does not constitute a
benevolent government, though it may be a mark of
‘ unwise legislation. Thus, in promoting temperance
by law the government does not act as a benevolent
government, for temperance is universally acknow-
ledged to be a virtue. The only question is whether
this is the best way of permanently elevating the
character of the people. But if it were to enforce
total abstinence by law, the government would then
really act as a benevolent one, for there is no gener-
ally received rule of morality which enj oins this. A
change in the law will almost always, indeed, be
opposed to the wishes of large .numbers of the people:
its justiﬁcation lies in the speed with which these
come to acquiesce in it.
This method of stating the matter seems to me to
show clearly, that so far from a Sanction being essential
to the nature of Law, it is, if not an accident, at least
a mark of the second order, and the necessity for it is
gradually removed in the following ways :—
1. By raising the character of individuals who are
by circumstances naturally predisposed to
crime; hence the importance of preventive
measures. . '
2. By bringing the Law continually into harmony
xv] THE soUReEs or LAw. 401‘
with the opinions of the people, so far as this
is consistent with other considerations which
must have weight with the Sovereign.
The results at which we have arrived may now be
recapitulated in the following form :—
1. Normal condition of Law.
Rules of law are rules made by a competent
authority to facilitate the fulﬁlment of
rules of morality, and resting upon the
assent of the people.
II. Abnormal conditions of Law.
Variation 1. i i
A certain number of individuals are unwill-
ing to obey the rules of morality and
therefore, also, the corresponding rules
of law. Hence these rules have to be
supported by a legal Sanction.
Variation 2.
Sovereigns occasionally make laws which are
at variance with received morality, which
violate the principles upon which rules of
law ought, according to popular opinion,
to be founded,‘ or which unduly fetter
individual discretion. These also have to
be supported by a legal Sanction.
It will be impossible to allow for both these varia-
tions in the remarks which follow. By so doing,
indeed, we should lose any clearness that may be de-
rived from the employment of our original abstraction,
and it must be sufficient to have pointed out the
corrections that have to be introduced before it can be
2 D
402 THE NATURE OF POSITIVE LAW. [XV'
made to correspond with the facts of life. It is import-
ant, however, to lay stress upon variation 1, for this,
as I have shown, gives rise to a whole department of
Law. I shall assume, then, that the security upon
which Bentham lays so much stress is ensured by the
Sanctions which the Law attaches to rules of morality.
Rules of law are simply regulations made to explain
the rules of morality; they are therefore sufficiently
enforced by the legal Sanction attached to the latter.
Hence, we have the following arrangement of Law :
1. Substantive Law.
a. Laws intended to render the fulﬁlment of rules
of morality possible to individuals.
i. Sanitary Law (in part).
Property Law.
iii. Contract Law, with the Law of Torts, so far
as it concerns the determination of lia-
bility for injury done.
b. Laws intended to render the fulﬁlment of rules
of morality possible by combined action.
i. Sanitary Law (in part).
ii. Poor Laws.
iii. Education Laws.
iv. Ecclesiastical Laws. 7
2. Sanctioning Law, or Law which merely enforces
moral rules.
Criminal Law in general, including the enforce-
ment of all judgments obtained in the civil
courts.
3. Administrative Law, or Law which regulates the
government in its various capacities.
XV] THE SOURCES OF LAW. . 403
Constitutional Law, with Civil and Criminal
Procedure.
It is hardly necessary to add that this does not cor—
respond to any actual division of Civil and Criminal
Law. Thus, in our own country, the enforcement of
contracts is placed entirely in the Civil Law, and at
Rome the same department of Law dealt with theft
and assault. This is, however, merely a matter of
procedure. The rule of law ﬁrst determines what is
mine and what is my neighbour’s. The moral law
then forbids me to take my neighbour’s property, and
if, nevertheless, I do so, I make myself liable to that
sanction of the State which supports the moral rule.
I break the law now, not through ignorance but
through evil design, and whether action is taken
against me by a public ofﬁcer or by the person
wronged is a mere matter of detail. Either course
is adopted according as the general security will be
thereby better maintained. But the point to which
I wish to call attention is, that the rule of Substantive
Law is only meant to enlighten the person as to his
position : if he violates this he violates a rule of
morality also, and for that he is punished.
We can now return to the consideration of the
different kinds of law-making. We have already seen
that the original source of law is Custom, but that
this is almost entirely replaced in course of time by
Legislation and Science, and I have given a general
rule as to the respective functions ‘of these two sources.
Of this I shall now speak more at length.
-I have said that Custom fails as a source of law, _
404 THE NATURE OF rosITIVR LAW. ' [Xv
either through conﬂict of interests or through com-
plication of interests, and that in the former case it
is properly replaced by Legislation, in the latter by
Science. When a rule, then, is made by the Legislature-
it is obeyed because the people trust the good sense
of the Legislature, and when it is made by J urists
because they trust the technical knowledge of the
J urists. There are, however, two reasons which in
actual practice prevent Science from holding this co-
ordinate position with Legislation. _
1. Its rules, although they generally unravel com-
plicated interests, yet not seldom decide also between
the interests of conﬂicting classes.
2. It is difficult to obtain unanimity of opinion
among J urists themselves.
It is probably the former reason which has always
prevented Science from being recognised as a source
of law in England; it was the latter which ﬁnally
deprived it of that position in the Roman Empire.
It is, however, necessary to understand clearly the
logical distinction between the provinces of Legislation
and of Science as sources of Law, before we consider
the actual distinction existing at the present day.
Assuming, then, that apart from actual and histori-
cal considerations, there are three sources of Law, Cus-
tom, Legislation, and Science, it will be necessary to
examine next into the methods in ‘which Law is actually
made. Here it will be well to avail ourselves of the
distinction drawn with such accuracy by Austin be—
tween direct and oblique law-making. Law is made
directly'when the immediate intention in making it
XVl THE SOURCES OF LAW. 405
is to establish a rule ; obliquely when the immediate
intention is to decide a case. Austin points out that
the great distinction which exists between these'
methods is, that a rule made directly must be inter-
preted strictly according to the letter, while a rule
made obliquely is interpreted according to the reason
which led to its foundation. It may, however, be
considered that the real distinction lies in the man-
ner in which each mode attacks the problem that
lies before it. Direct legislation proceeds boldly ; it
assumes that it can foresee all future cases, and makes
a rule which shall apply to all of them; oblique
legislation is cautious, it proceeds tentatively ; it does
not profess to look at more than the case actually
before it, and to compare it with all similar cases that
have preceded. But it is well known that in this
latter case a succession of precedents soon establishes
a rule, which has really all the exactness and all the
rigidity of a rule made in the direct manner. Hence
we see that each style of law-making has its ap-
propriate place, and that each requires to be assisted
by the other. When we can clearly foresee a large
number of future cases, and when we are sure of the
principle by which theyshould be decided, we ought
to make a direct rule which will cover them. But
where amid the complication of interests it is difficult-
to foresee similar cases, and where the principle of
decision would not be clear if we could, there it is
best to abstain from making a rule and to decide
each case as it arises. Each method, therefore, re-
quires to be assisted by the other. Hence :—
406 THE NATURE or POSITIVE LAW." [xv
1. The rule of direct law must not be so strictly
interpreted as to prevent all adjustment of it to actual
cases. This is governed by special rules of inter-
pretation, though in England the grammatical inter-
pretation is far too much followed.
2. There must be means for converting oblique
law as rapidly as possible into statute law, in order
that the trouble of gathering a rule from decided cases
may not be gone through over and over again. It
was the entire neglect of this point that produced in
England the demand for codiﬁcation which existed
some years ago.
It must be remarked that the principle according
to which both kinds of law should be made is the
principle‘ of utility, but it is used in a somewhat
different manner in each case. In making a rule of
law directly, while we are not of course forgetful of
past cases, yet the immediate foundation of it is a
direct appeal to the principle; but in making a rule
of law obliquely We do not thus appeal to the prin-
ciple directly; the process is, indeed, divided into two
parts.
1. So far as the new case resembles old ones, it
is assumed that the principle of utility is embodied
in the former decisions; to these, then, the direct
appeal is. made.
2. So far, however, as the new case diﬂ‘ers from
old cases, an appeal is made directly to the principle
of utility.
The entire ideal process of law-making may, there-
fore be exhibited as follows :—
XV] THE SOURCES OF LAW. 407
Every new law, so far as it does not embody an
actually expressed wish of the people, must be founded
upon the principle of utility, but we may regard this
principle as existing separately, or as embodied in past
decisions.
1. Where we can see our way to a number of
cases, and also see how the principle of utility can be
carried out, we appeal to the principle at once and
make a rule of law directly.
2. Where we cannot see our way clearly either to
classes of cases or to the observance of the principle,
we make a rule of law obliquely, that is, we wait for
a case to arise and then decide it chieﬂy by reference
to the principle as embodied in past decisions, and
partly by a direct appeal to utility. '
But each method requires to be corrected in the
following manner :—
i. The rule of law made directly will probably not
have fully anticipated all cases; hence we must have
rules of interpretation that will allow it a certain
amount of elasticity, so as to carry out the intentions
of its authors. These, however, must not change the
idea of utility as conceived by them.
ii. The rules of law made obliquely and embodied
in decided cases, become gradually ready to be ex-
tracted therefrom and expressed as rules of law
directly. Provision should therefore be made for this
to be regularly done.
If, then, ‘this is the manner in which Law ought
to be made we may now enquire of which method
Custom, Legislation, and , Science respectively avail '
408 THE NATURE OF POSITIVE LAW. [XV
themselves, and we shall afterwards consider what is
the actual system at present at work in England.
1. Custom—It is diﬂicult to say how Customary
Law is actually made, .for it grows up gradually and
cannotbe attributed to any one author. I have else-
where described it as a system of unconscious adapta-
tion to surrounding circumstances. Every one who at
ﬁrst follows the custom, assists in the making of it;
we can only call it a direct perception by each indi-
vidual of what is most for his advantage in special
cases. As soon as this perception dies away, the
custom is established, and successive generations
follow it merely as law. The only thing that remains
then is to express it in rules, and these are probably
the unconscious result of a number of cases obliquely
decided.
2. Legislation. ——1 have already said that the
proper business of Legislation is to decide between
conﬂicting interests; since this should always be
done in such a manner as to carry out the principle
of utility, we might say that it ought to be done by
those who are best conversant with the state of
society, i.e. by those who have made social science
their special study. There has, however, been no
people hitherto who have consented to hand over
this important function to others, and there are many ‘
reasons which make such a course both impossible and
undesirable. Wherever, then, a proposed law is seen
to affect the welfare of large classes of people, these
classes have a natural desire to express an opinion
upon what they conceive t9 be for the greatest happi-
xvi THE SOURCES or LAW. 409
ness of the greatest number, and we need not alter
this expression, because the result is frequently to
discover what they conceive to be for their own
happiness. Hence a new rule which directly affects
the interests of the people, and which does not involve
a complicated arrangement of details, ought to be
made by means of Legislation proper. All such rules
are necessarily direct.
3. Science—Lastly, we have to consider in‘ what
way by far the largest part of law-making may be
done by Science. This comprises a part of direct
legislation, the whole of oblique legislation, and the
whole of those two branches of supplementary legisla-
tion mentioned above. ThusQ—
i. Direct legislation. ~
Rules which merely perfect the details of legis-
lative measures, and rules which affect com-
plicated interests about which there is no
dispute, are properly made by J urists.
ii. Oblique legislation.
This is obviously within the province of 7
Science ; for either the cases by which it is
made are actual ones, and then the law is
made by Judges, or the cases by which it is
made are imaginary ones, and then the law
is made by J urists.
Supplementary legislation.
1 a. Interpretation of laws.
I). Abstraction of rules from decided cases.
It is needless to remark that both of ' these fall
within the domain of Science.
410 THE NATURE or PosITIvE LAW. [xv
Let us now see how these various functions are
actually performed in England. It will be unneces-
sary to take any notice of Custom as a source of Law,
for where it does exist, it has been almost entirely
replaced by express law, and Where this has not been
the case, there are no certain marks by which it may
be recognised. It has actually become, as Austin
says, merely a reason for which a law is made, but
no source of law itself. Moreover, We have seen that
direct legislation is possible where a number of future
cases can be foreseen; but in many matters such
foreseeing depends either upon local or upon special
knowledge. Hence We must reckon as sources of Law
not only the supreme Legislature, but also subordinate
Legislatures. We shall then be able to map out the
system of law-making as follows :—
1. Direct Legislation.
1. By Parliament.
a. Laws are properly made by Parliament when
their object is to enforce moral laws, to reconcile
conﬂicting interests which are affected by laws proper,
or to make laws interfering with individual discretion.
b. Not satisﬁed, however, with this work, Par-
liament frequently attempts to make laws which con-
cern complicated and technical matters. The remedy
for this is now being found in the fact that no one
assembly can manage thus minutely the affairs of, a
vast empire; and We have some approach to a better
state of things in the appointment of Grand Com-
mittees. It is not, however, recognised that there
XV] THE SOURCES OF LAW. 411
are many matters which are improper for discussion
in Parliament at all, and this has only been allowed
so far in certain matters of legal detail ; thus several
statutes affecting conveyancing merely have passed
through Parliament almost without discussion. The
only objection to this course is that they often proceed
from individual J urists merely, and do not carry with
them the approval of a school of Jurisprudence.
Until such a school is created, the only improvement
that can be hoped for in this direction is to see new
legislation exposed more and more to professional
criticism before it is presented to Parliament, and
then to have the practice of discussing matters, which
are acknowledged to be purely technical, further dis—
couraged. It may, indeed, be impossible or impolitic
ever to raise Science, as an independent source of
Law, to the same level as the supreme Legislature.
If, then, new laws must always be laid pro format
before Parliament, this should, as a rule, be merely
to satisfy constitutional etiquette.
2. By Subordinate Legislatures.
These are of two kinds, local and technical.
a. Subordinate Local Legislatures.
The usual matters entrusted to these are, of course,
those which must be regulated according to local
circumstances. Prominent among them are the
various arrangements which are dealt with by sanitary
law.
‘ b. Subordinate Technical Legislatures.
There are several departments of state which have
the framing of rules upon technical matters, and which
412 THE NATURE OF POSITIVE LAW. [xv
properly come under this designation. It is usual to
make the laws which proceed from these depend
directly upon the supreme Legislature by requiring _
them to lie for so many days on the tables of the
Houses of Parliament. Thus, rules with regard to
education are made by the Education Department,
rules with regard to trade by the Board of Trade, and
so on. We may specially notice that in this way the
Judges also constitute a department for the issuing of
rules as to procedure subject to the approval of Par-
liament. It may not be improper to remark that
we have here, perhaps, the solution of the question
referred to above. I have just said that it may
be impossible and impolitic to allow Science a co-
ordinate position with Parliament as a source of Law,
and yet its functions can only be properly performed
if they are carried on with but little interference from
that quarter. At a time, then, when the demand is
rapidly assuming importance for the constitution of a
Ministry of J ustice, as one of the departments of the
State, it may reasonably be suggested that in such a
department would be found the proper point of con-
tact between Science and Parliament.
II. Oblique Legislation.
In England this is performed entirely by the
Judges, and the only cases that are allowed to affect
it are those which actually come before the courts for
decision. In this matter the Judges perform ex-
clusively the work of the J urists, and these, however
great may be their authority in vsuggesting changes,
XV] THE SOURCES OF LAW. 413
have no such inﬂuence as the Roman J urists had upon
this department of Legislation.
VIII. Supplementary Legislation.
1. Interpretation.
I have already remarked that owing to the ex-
cessive strictness with which the letter of the law is
followed in England, there is at present hardly any
proper system of interpretation. Statute law is un-
doubtedly good, but there is no necessity to carry out
the literal meaning with such strictness as to make
it like an edged weapon whose very use is dangerous.
Much of the objection to codiﬁcation would cease if
statute law were subjected to a rational system of
interpretation.
2. Expression of Judiciary Law in rules.
This is a matter which peculiarly belongs to the
Science of Law, and it is with this that nearly the
whole of our legal literature is concerned. The only
objection to such literature is that it carries no
intrinsic weight, and hence in deciding a case the
whole process of abstracting a rule has often to be
gone through in open court. For this there are two
remedies.
i. The independent foundation of a school of
Jurisprudence, which shall , perform in a systematic
manner the work that is now done at random and
without system. I am, of course, aware that such a
School cannot be created at will, but must spring up
naturally. It might, perhaps, be supposed that the
Inns of Court would be the proper bodies to give
414 THE NATURE OF POSITIVE LAW. [XV
such assistance and encouragement as in the nature
of things are possible ; but owing to the exceptional
position which the Judges have acquired. in the mak-
ing of our Law, the true life of the legal profession
is to be seen only in Court practice. Hitherto, in-
deed, the immediate application of Law is all that we
have in general concerned ourselves with, and it has
not been duly recognised that the progress of Law
depends as much on the cultivation of the theory as
the correctness of the practice. In this connection
it may be proper to advert to the comparison which
is sometimes drawn between our own and continental
countries in the matter of codiﬁcation. Sir Henry
Maine has remarked that the one object of J uris-
prudence is the production of a Code, and Sir Roland
Wilson has surmised that this, when it does come,
will be the work of some one legal genius, and will
bear such evident marks of goodness that the people
will immediately accept it, and call for the Code, the
whole Code, and nothing but the Code.1 The ﬁrst of
these remarks, of course, is as true for Jurisprudence
as it is for any other science which has for its object
the guidance of human action; all of these issue‘
ﬁnally in a set of rules. The latter seems to lay too
much stress on the Work of the individual, and too
little on the gradually accumulating labours of the
School in the midst of which he must be reared. But
if we turn our eyes to continental countries, We see
that with them the Jurists have always occupied a
high position in legal matters, and that the theory of
1 Modern English Law, p. 180.
XV] THE SOURCES OF LAW. 415
Law has been gradually elaborated by the long con-
tinued study of the Roman Law. This matter in
itself would be fruitful in instruction were this the
place to follow it up. It must be sufficient, however,
to point out that it is useless to hope for any Code
or collection of practical rules which shall be satisfac-
tory, until English professional opinion has recognised
that the practitioners of Law are helpless unless they
have behind them a well-established School, whose
special business is the theory of Law. I do not of
course mean to imply that the Jurists should be
separated from actual contact with and knowledge of
the world, and I may, perhaps, remark that some
recent appointments to legal professorships seem to
show that the exact want which I have been pointing
out is at length being realised.
Or the actual work may be done under the
auspices of Government. To this source, indeed,
people usually look for the initiative in codiﬁcation,
and were the foundation of an independent school of
Jurisprudence hopeless, this task, like others, might
in despair be thrown on that miraculous institution ;
for it is curious to notice that since Divine Right has
been withdrawn from Sovereigns a kind of Divine
Power has been ascribed to them instead.
It will be safe, however, to say that any real
improvement in the vast mass of our Law must come
from both these sources. Government cannot move
until Jurisprudence has done its work, and, with our
present ideas, Judges cannot accept new rules until
they have received the approval of Government. In
416 THE NATURE OF POSITIVE LAW. [XV
what way this adjustment of functions will be brought
about I need not now speculate, but there must at least
be rather more self-assertion on the part of professional
Jurists, as soon as legal Science has in popular estima-
tion justiﬁed its existence, and a great deal less on
the part of amateur legislators.
We may sum up these remarks, then, by saying
that the actual sources of Law are at present the
Supreme and Subordinate Legislatures, and the
Judges; that to these last the process of oblique
legislation is almost entirely conﬁned, but that they
are regarded in this capacity not as J urists, but as
the servants of the, State; and that no considerable
improvement in our Law can be hoped for until
legal Science has been established upon a ﬁrm and
independent basis.
I have thus explained the nature of Positive
Law, and its relations to Morality and to Politics.
The next step would be. to consider the bearing
of the above remarks upon our conceptions of legal
Rights and Duties. To do this, however, would be
beyond the sphere of the present work, and I must
content myself with remarking that the attention
which is now paid to Substantive, as opposed to
merely Adjective Law, seems to call for a new
analysis of these conceptions, an analysis supple-
mentary to that of Austin, which depends almost‘
entirely on the enforcement of Rights and neglects
their substance.
According to the view, then, which I have thus
tried to present, Law is a collection of rules regulat-
xv] THE SOURCES OF LAW. 417
ing either human actions or human relations, which
spring from and explain the current rules of morality,
and which therefore depend for their support upon the
general assent of the people. Owing, however, to the
fact that individual wills are sometimes in opposition
to the general will, the Law must occasionally be en-
forced by the physical power of the community, and,
owing to the complication of human affairs, it must
sometimes be decided by courts of law. Further, these
rules are made by a Sovereign who is acquainted with
the wishes of the people, either directly in accordance
with such wishes where they can be ascertained, or
where this is not possible by reference to the prin-
ciple of utility, or else upon the advice of J urists who
are skilled in legal matters.
It will not be necessary to say much more in jus-
tiﬁcation of this. It does not pretend to be a deﬁ-
nition which in all cases corresponds to the facts of
life ; such a deﬁnition, indeed, it is perhaps impossible
to frame. It does, however, seem to me to represent
in general the condition of Law among those peoples
whose legal development has been least interrupted by
foreign conquest, and to set before us an ideal, not
too far removed from reality, towards which in civil-
ised communities Law gradually tends. I have else-
where said that Austin’s system, useful as it may be,
errs from attaching too great importance to certain
prominent external marks of Law. These marks I by
no means neglect, but I think they may properly be
relegated to a secondary position. Force is an occa-
sional necessity in the administration of Law, but
2 E
418 THE NATURE or POSITIVE LAW. [Xv
when‘ it has to be extensively employed We know
that something is wrong with the rules of law, and
that they offend against current morality; where,
again, popular resistance to the Law passes a certain
point, and is not opposed to the opinion of other more
powerful classes of a community it becomes a dead
letter. Nothing could show more clearly than this
that Law does not in general rely on force for its
maintenance, but only summons it occasionally to its
assistance.
In putting forward such a view I should like to say
that personally I am under the greatest obligations to
Austin’s work. The accuracy of his analysis and his
careful avoidance of all ambiguity, have always seemed
to me to far outweigh the faults that are charged
against his style, and from him I discovered that some-
thing of the accuracy of mathematical reasoning might
be introduced into the moral sciences. If, then, I have
ventured to wander from the path which he marked
out, it is inno spirit of disrespect to so great a master,
but because more recent investigations at home and
the work of eminent J urists abroad seemed to reveal
essential ‘features in Law which he had failed to grasp.
Such failure, indeed, is not wonderful if we remember
who were his teachers, Paley in Morality and Hobbes
in Law. Each alike placed the spring of human action
in fear—with one Morality was due to fear of God,
with the other Law was due to fear of man. But as
to the former idea, while I do not say that it has been
or ever will be entirely banished, yet it has at least
been seriously modiﬁed. We now know more about
xv] - THE SOURCES or LAW. 419
the growth of Morality and the facts of human nature,
and we recognise that actual Morality exists because
its rules are consonant to the average requirements
' and opinions of men. In the same way it is time to
recognise that Law also does not repose on the com-
mand of a Sovereign, however it may take this shape
sometimes ; that it cannot venture long to oppose
current rules of morality, or popular opinion as to the
observance of these rules; and that every display of
Force does not so much vindicate the majesty of the
Law, as show that there is a defect somewhere in the
social machine ; either that the rule of Law offends a
rule of Morality, or that a criminal has been allowed
to grow up in the midst of society.
In conclusion, we may say that no idea of Law, as
it exists in civilised communities of the present day,
can be correct, which ignores the direct and immediate
effect that public opinion has upon it, or which abstains
from assigning to Force its proper position in the social
system, a position which it occupies as the servant of
Law, and in which it must nicely adjust itself to every
case with a view to the general progress of Morality.
THE END.
Printed 63/ R. & R. CLARK, Edz'néurg/z.


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