Law

LAW

THE present article will be limited to the consideration of the phenomena presented for study by positive laws.

The objects which laws ought to subserve, the principles of legislation, the sphere of law, the province of government, and other topics of a similar nature which are generally to be found in writings professing to treat of law in the abstract have been discussed under the heading Government and elsewhere. It will be convenient, and it will be following the lines of a very remarkable development of English thought, to take actual laws as positive facts, without reference to their goodness or badness, and examine, so far as it can be done within the limits at our command, the character which they present when looked at from different points of view. This conception of the science of law, which is closely related to the scientific ideas of the time, has been developed by the efforts of the modern school of English jurists. In former times the science of law meant anything but science as we have been taught to conceive it by physical philosophers. It meant if anything a philosophy of legal principles not necessarily related to any system of actual law. A philosophy of laws actually existing in fact is what we in England at least should now consider the science of law to be. By universal consent the somewhat shifting term jurisprudence has been limited to this meaning. Jurisprudence is the science of positive laws. The present article will attempt to present simply the leading principles and conclusions of jurisprudence.

The human race may be conceived as parcelled out into a number of distinct groups or societies, differing greatly in size and circumstances, in physical and moral characteristics of all kinds. But they all resemble each other in this that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed. Such rules we may for the present, without anticipating a somewhat difficult discussion, term laws. Each society has its own system of laws, and all the systems, so far as they are known, constitute the appropriate subject matter of jurisprudence. The jurist may deal with it in the following ways. He may first of all examine the leading conceptions common to all the systems, or in other words define the leading terms common to them all. Such are the terms law itself, right, duty, property, crime, and so forth, which, or their equivalents, may, notwithstanding delicate differences of connotation, be regarded as common terms in all systems. That kind of inquiry is what is known in England as analytical jurisprudence. It regards the conceptions with which it deals as fixed or stationary, and aims at expressing them distinctly and exhibiting their logical relations with each other. What is really meant by a right and by a duty, and what is the true connexion between a right and a duty, are types of the questions proper to this inquiry. Shifting our point of view, but still regarding systems of law in the mass, we may consider them, not as stationary, but as changeable and changing, we may ask what general features are exhibited by the record of the change. This, somewhat crudely put, may serve to indicate the field of historical jurisprudence. In its ideal condition it would require an accurate record of the history of all legal systems as its material. As yet the record is exceedingly incomplete, and the results are proportionately limited. But whether the material be abundant or scanty, the method is the same. It seeks the explanation of institutions and legal principles in the facts of history. Its aim is to show how a given rule came to be what it is. The legislative source—the emanation of the rule from a sovereign authority—is of no importance here; what is important is the moral source—the connexion of the rule with the ideas prevalent during contemporary periods. This method, it is evident, involves, not only a comparison of successive stages in the history of the same system, but a comparison of different systems, of the Roman with the English, of the Hindu with the Irish, and so on. The historical method as applied to law may be regarded as a special example of the method of comparison. The comparative method is really employed in all generalizations about law; for, although the analysis of legal terms might be conducted with exclusive reference to one system, the advantage of testing the result by reference to other systems is obvious. But, besides the use of comparison for purposes of analysis and in tracing the phenomena of the growth of laws, it is evident that for the purposes of practical legislation the comparison of different systems may yield important results. Laws are contrivances for bringing about certain definite ends, the larger of which are identical in all systems. The comparison of these contrivances not only serves to bring their real object, often obscured as it is in details, into clearer view, but enables legislators to see where the contrivances are deficient, and how they may be improved.

The “science of law,” as the expression is generally used, means the examination of laws in general in one or other of the ways just indicated. It means an investigation of laws which exist or have existed in some given society in fact—in other words, positive laws; and it means an examination not limited to the exposition of particular systems. Analytical jurisprudence is in England associated chiefly with the name of John Austin (q.v.), whose Province of Jurisprudence Determined systematized and completed the work begun in England by Hobbes, and continued at a later date and from a different point of view by Bentham. The best view of the subject will be obtained by taking Austin’s principal positions in outline, and considering the criticisms which later jurists have bestowed upon them.

Austin’s first position is to distinguish between laws properly so called and laws improperly so called. In any of the older writers on law, we find the various senses in which the word is used grouped together as variations of one common meaning. Thus Blackstone advances to his proper subject, municipal laws, through (1) the laws of inanimate matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws of nature, which are rules imposed by God on men and discoverable by reason alone, and (4) the revealed or Divine law, which is part of the law of nature directly expounded by God. All of these are connected by this common element that they are “rules of action dictated by some superior being.” And some such generalization as this is to be found at the basis of most treatises on jurisprudence which have not been composed under the influence of the analytical school. Austin disposes of it by the distinction that some of those laws are commands, while others are not commands. The so-called laws of nature are not commands; they are uniformities which resemble commands only in so far as they may be supposed to have been ordered by some intelligent being. But they are not commands in the only proper sense of that word,—they are not addressed to reasonable beings, who may or may not will obedience to them. Laws of nature are not addressed to anybody, and there is no pos sible question of obedience or disobedience to them. Austin accordingly pronounces them laws improperly so called, and confines his attention to laws properly so called, which are commands addressed by a human superior to a human inferior.

This distinction seems so simple and obvious that the energy and even bitterness with which Austin insists upon it now seems superfluous. But the indiscriminate identification of everything to which common speech gives the name of a law was, and still is, a fruitful source of confusion. Blackstone’s statement that when God “put matter into motion He established certain laws of motion, to which all movable matter must conform,” and that in those creatures that have neither the power to think nor to will such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience, imputes to the law of gravitation in respect of both its origin and its execution the qualities of an Act of Parliament. On the other hand the qualities of the law of gravitation are imputed to certain legal principles which, under the name of the law of nature, are asserted to be binding all over the globe, so that “no human laws are of any validity if contrary to this.” Nonsense like this so exasperated Austin that he never fails to stigmatize the use of “natural laws” in the sense of scientific facts as improper, or as metaphorical. A later writer has pointed out that law in the scientific sense has acquired a position of its own, from which it is impossible to dislodge it, and which involves none of the ambiguities and confusions against which Austin protested. It would be as reasonable for the man of science as for the jurist to set up his own conception of law as the only legitimate one. There is perhaps only one field of inquiry where the two opposed conceptions of law are still to be found entangled. The “laws of political economy” still hover in the minds of many between the jural and the scientific conception. Certain economical principles appear to have acquired a double character,—that of scientific generalizations, and that of rules which may be disobeyed. Measures are pronounced to be a violation of the laws of political economy, with a vague implication that these being laws of nature any violation of them must be particularly heinous.

Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portion of Austin’s work is occupied with the determination of its meaning. A command is an order issued by a superior to an inferior. It is a signification of desire distinguished by this peculiarity that “the party to whom it is directed is liable to evil from the other, in case he comply not with the desire.” “If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command.” Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it. The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil. The three terms command, duty, and sanction are thus inseparably connected. As Austin expresses it in the language of formal logic, “each of the three terms signifies the same notion, but each denotes a different part of that notion, and connotes the residue.”

All commands, however, are not laws. That term is reserved for those commands which oblige generally to the performance of acts of a class. A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule; a command to rise always at that hour is a law or rule. Of this distinction it is sufficient to say in the meantime that it involves, when we come to deal with positive laws, the rejection of particular enactments to which by inveterate usage the term law would certainly be applied. On the other hand it is not, according to Austin, necessary that a true law should bind persons as a class. Obligations imposed on the grantee of an office specially created by parliament would imply a law; a general order to go into mourning addressed to the whole nation for a particular occasion would not be a law.

So far we have arrived at a definition of laws properly so called. Austin holds superiority and inferiority to be necessarily implied in command, and such statements as that “laws emanate from superiors” to be the merest tautology and trifling. Elsewhere he sums up the characteristics of true laws as ascertained by the analysis thus :— (1) laws, being commands, emanate from a determinate source; (2) every sanction is an evil annexed to a command; and (3) every duty implies a command, and chiefly means obnoxiousness to the evils annexed to commands.

Of true laws, those only are the subject of jurisprudence which are laws strictly so called, or positive laws. Austin accordingly proceeds to distinguish positive from other true laws, which are either laws set by God to men or laws set by men to men, not, however, as political superiors nor in pursuance of a legal right. The discussion of the first of these true but not positive laws leads Austin to his celebrated discussion of the Utilitarian theory. The laws set by God are either revealed or unrevealed, i.e., either expressed in direct command, or made known to men in one or other of the ways denoted by such phrases as the “light of nature,” “natural reason,” “dictates of nature,” and so forth. Austin maintains that the principle of general utility, based ultimately on the assumed benevolence of God, is the true index to such of His commands as He has not chosen to reveal. His exposition of the meaning of the principle is a most valuable contribution to moral science, though he rests its claims ultimately on a basis which many of its supporters would disavow. And the whole discussion is now generally condemned as lying outside the proper scope of the treatise, although the reason for so condemning it is not always correctly stated. It is found in such assumptions of fact as that there is a God, that He has issued commands to men in what Austin calls the “truths of revelation,” that He designs the happiness of all His creatures, that there is a predominance of good in the order of the world—which do not now command universal assent. It is impossible to place these propositions on the same scientific footing as the assumptions of fact with reference to human society on which jurisprudence rests. If the “Divine laws” were facts like Acts of Parliament, it is conceived that the discussion of their characteristics would not be out of place in a scheme of jurisprudence.

The second set of laws properly so called, which are not positive laws, consists of three classes:—(1) those which are set by men living in a state of nature; (2) those which are set by sovereigns but not as political superiors, e.<∕., when one sovereign commands another to act according to a principle of international law; and (3) those set by subjects but not in pursuance of legal rights. This group, to which Austin gives the name of positive morality, helps to explain his conception of positive law. Men are living in a state of nature, or a state of anarchy, when they are not living in a state of government or as members of a political society. “Political society” thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of life in which Austin would not have admitted the existence of a political society. Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other. Thus laws set by subjects in consequence of a legal right are clothed with legal sanctions, and are laws positive. A law set by guardian to ward, in pursuance of a right which the guardian is bound to exercise, is a positive law pure and simple; a law set by master to slave, in pursuance of a legal right which he is not bound to exercise, is, in Austin’s phraseology, to be regarded both as a positive moral rule and as a positive law. On the other hand the rules set by a club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws. They are imperative and proceed from a determinate source, but they have no legal or political sanction. Closely connected with this positive morality, consisting of true but not positive laws, is the positive morality whose rules are not laws properly so called at all, though they are generally denominated laws. Such are the laws of honour, the laws of fashion, and, most important of all, international law.

Nowhere does Austin’s phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations (which in substance is a compact body of well-defined rules resembling nothing so much as the ordinary rules of law) to be not laws at all, even in the wider sense of the term. That the rules of a private club should be law properly so called, while the whole mass of international jurisprudence is mere opinion, shocks our sense of the proprieties of expression. Yet no man was more careful than Austin to observe these proprieties. He recognizes fully the futility of definitions which involve a painful struggle with the current of ordinary speech. But in the present instance the apparent paralogism cannot be avoided if we accept the limitation of laws properly so called to commands proceeding from a determinate source. And that limitation is so generally present in our conception of law that to ignore it would be a worse anomaly than this. No one finds fault with the statement that the so-called code of honour or the dictates of fashion are not, properly speaking, laws. We repel the same statement applied to the law of nature, because it resembles in so many of its most striking features—in the certainty of a large portion of it, in its terminology, in its substantial principles—the most universal elements of actual systems of law, and because, moreover, the assumption that brought it into existence was nothing else than this, that it consisted of those abiding portions of legal systems which prevail everywhere by their own authority. But, though “positive morality” may not be the best phrase to describe such a code of rules, the distinction insisted on by Austin is unimpeachable.

The elimination of those laws properly and improperly so called which are not positive laws brings us to the definition of positive law, which is the keystone of the system. Every positive law is “set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or superior.” Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the character of a political superior. The question is not as to the historical origin of the principle, but as to its present authority. “The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law.” This definition involves the analysis of the connected expressions sovereignty, subjection, and independent })olitical society, and of determinate body,— which last analysis Austin performs in connexion with that of commands. These are all excellent examples of the logical method of which he was so great a master. The broad results alone need be noticed here. In order that a given society may form a society political and independent, the generality or bulk of its members must be in a habit of obedience to a certain and common superior; whilst that certain person or body of persons must not be habitually obedient to a certain person or body. All the italicized words point to circumstances under which it might be difficult to say whether a given society is political and independent or not. Several cf these Austin has discussed,— e.g., the state of things in which a political society yields obedience which may or may not be called habitual to some external power, and the state of things in which a political society is divided between contending claimants for sovereign power, and it is uncertain which shall prevail, and over how much of the society. So long as that uncertainty remains we have a state of anarchy. Further, an independent society to be political must not fall below a number which can only be called considerable. Neither then in a state of anarchy, nor in inconsiderable communities, nor among men living in a state of nature, have we the proper phenomena of a political society. The last limitation goes some way to meet the most serious criticism to which Austin’s system has been exposed, and it ought to be stated in his own words. He supposes a society which may be styled independent, which is considerable in numbers, and which is in a savage or extremely barbarous condition. In such a society, “the bulk of its members is not in the habit of obedience to one and the same superior. For the purpose of attacking an external enemy, or for the purpose of repelling an attack, the bulk of its members who are capable of bearing arms submits to one leader or one body of leaders. But as soon as that emergency passes the transient submission ceases, and the society reverts to the state which may be deemed its ordinary state. The bulk of each of the families which compose the given society renders habitual obedience to its own peculiar chief, but those domestic societies are themselves independent societies, or are not united and compacted into one political society by habitual and general obedience to one common superior, and there is no law (simply or strictly so styled) which can be called the law of that society. The so-called laws which are common to the bulk of the community are purely and properly customary laws—that is to say, laws which are set or imposed by the general opinion of the community, but are not enforced by legal or political sanctions.” Such, he says, are the savage societies of hunters and fishers in North America, and such were the Germans as described by Tacitus. He takes no account of societies in an intermediate stage between this and the condition which constitutes political society.

We need not follow the analysis in detail. Much ingenuity is displayed in grouping the various kinds of government, in detecting the sovereign authority under the disguises which it wears in the complicated State system of the United States or under the fictions of English law, in elucidating the precise meaning of abstract political terms. Incidentally the source of many celebrated fallacies in political thought is laid bare. That the question who is sovereign in a given state is a question of fact and not of law or morals or religion, that the sovereign is incapable of legal limitation, that law is such by the sovereign’s command, that no real or assumed compact can limit his action—are positions which Austin has been accused of enforcing with needless iteration. He has cleared them, however, from the air of paradox with which they had been previously encumbered, and his influence was in no direction more widely felt than in making them the commonplaces of educated opinion in this generation.

Passing from these, we may now consider what has been said against the theory, which may be summed up in the following terms. Laws, no matter in what form they be expressed, are in the last resort reducible to commands set by the person or body of persons who are in fact sovereigns in any independent political society. The sovereign is the person or persons whose commands are habitually obeyed by the great bulk of the community; and by an independent society we mean that such sovereign head is not himself habitually obedient to any other determinate body of persons. The society must be sufficiently numerous to be considerable before we can speak of it as a political society. From command, with its inseparable incident of sanction, come the duties and rights in terms of which laws are for the most part expressed. Duty means that the person of whom it is predicated is liable to the sanction in case he fails to obey the command. Right means that the person of whom it is predicated may set the sanction in operation in case the command be disobeyed.

Before noticing the considerable body of hostile criticism with which in the main we are unable to agree, we may here interpolate a doubt whether the condition of independence on the part of the head of a community is essential to the legal analysis. It seems to us that we have all the elements of a true law present when we point to a community habitually obedient to the authority of a person or determinate body of persons, no matter what the relations of that superior may be to any external or superior power. Provided that in fact the commands of the lawgiver are those beyond which the community never looks, it seems immaterial to inquire whether this lawgiver in turn takes his orders from somebody else or is habitually obedient to such orders when given. One may imagine a community governed by a dependent legislatorial body or person, while the supreme sovereign whose representative and nominee such body or person may be never directly addresses the community at all. We do not see that in such a case anything is gained in clearness by representing the law of the community as set by the suzerain, rather than the dependent legislator. Nor is the ascertainment of the ultimate seat of power necessary to define political societies. That we get when we suppose a community to be in the habit of obedience to a single person or to a determinate combination of persons.

The use of the word “command” is not unlikely to lead to a misconception of Austin’s meaning. When we say that a law is a command of the sovereign, we are apt to think of the sovereign as enunciating the rule in question for the first time. Many laws are not traceable to the sovereign at all in this sense. Some are based upon immemorial practices, some can be traced to the influence of private citizens, whether practising lawyers or writers on law, and in most countries a vast body of law owes its existence as such to the fact that it has been observed as law in some other society. The great bulk of modern law owes its existence and its shape ultimately to the labours of the Roman lawyers of the empire. Austin’s definition has nothing to do with this, the historical origin of laws. Most books dealing with law in the abstract generalize the modes in which laws may be originated under the name of the “sources” ot law, and one of these is legislation, or the direct command of the sovereign body. The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the establishment of the general laws governing the evolution of law in the technical sense. Austin’s definition looks, not to the authorship of the law as a principle, not to its inventor or originator, but to the person or persons who in the last resort cause it to be obeyed. If a given rule is enforced by the sovereign it is a law.

It may be convenient to notice here what is usually said about the sources of law, as the expression sometimes proves a stumbling-block to the appreciation of Austin’s system. In the corpus juris of any given country only a portion of the laws is traceable to the direct expression of his commands by the sovereign. Legislation is one, but only one, of the sources of law. Other portions of the law may be traceable to other sources, which may vary in effect in different systems. The list given in the Institutes of Justinian of the ways in which law may be made— lex, plebiscitum, principis placita, edicta magistratuum, and so on—is a list of sources. Among the sources of law other than legislation which are most commonly exemplified are the laws made by judges in the course of judicial decisions, and law originating as custom. The source of the law in the one case is the judicial decision, in the other the custom. In consequence of the decisions and in consequence of the custom the rule has prevailed. English law is largely made up of principles derived in each of those ways, while it is deficient in principles derived from the writings of independent teachers, such as have in other systems exercised a powerful influence on the development of law. The responsa prudentum, the opinions of learned men, published as such, did undoubtedly originate an immense portion of Roman law. No such influence has affected English law to any appreciable extent—a result owing to the activity of the courts of the legislature. This difference has profoundly affected the form of English law as compared with that of systems which have been developed by the play of free discussion. These are the most definite of the influences to which the beginning of laws may be traced. The law once established, no matter how, is nevertheless law in the sense of Austin’s definition. It is enforced by the sovereign authority. It was originated by something very different. But when we speak of it as a command we think only of the way in which it is to-day presented to the subject. The newest order of an Act of Parliament is not more positively presented to the people as a command to be obeyed than are the elementary rules of the common law for which no legislative origin can be traced. It is not even necessary to resort to the figure of speech by which alone, according to Sir Henry Maine {Early History of Institutions, p. 314), the common law can be regarded as the commands of the Government. “The common law,” he says, “consists of their commands because they can repeal or alter or restate it at pleasure.” “They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment.” On the contrary, it may be said that they command because they do as a matter of fact enforce the rules laid down in the common law. It is not because they could innovate if they pleased in the common law that they are said to command it, but because it is known that they will enforce it as it stands.

The criticism of Austin’s analysis resolved itself into two different sets of objections. One relates to the theory of sovereignty which underlies it; the other to its alleged failure to include rules which in common parlance are laws, and which it is felt ought to be included in any satisfactory definition of law. As the latter is to some extent anticipated and admitted by Austin himself, we may deal with it first.

A recent writer has been at great pains to collect a number of laws or rules of law which do not square with the Austinian definition of law as a command creating rights and duties. Take the rule that “every will must be in writing.” It is a very circuitous way of looking at things, according to Mr Harrison, to say that such a rule creates a specific right in any determinate person of a definite description. So, again, the rule that “a legacy to the witness of a will is void.” Such a rule is not “designed to give anyone any rights, but simply to protect the public against wills made under undue influence.” Again, the technical rule in Shelley’s case that a gift to A for life, followed by a gift to the heirs of A, is a gift to A in fee simple, is pronounced to be inconsistent with the definition. It is an idle waste of ingenuity to force any of these rules into a form in which they might be said to create rights.

This would be a perfectly correct description of any attempt to take any of these rules separately and analyse it into a complete command creating specific rights and duties. But there is no occasion for doing anything of the kind. It is not contended that every grammatically complete sentence in a text-book or a statute is per se a command creating rights and duties. · A law, like any other command, must be expressed in words, and will require the use of the usual aids to expression. The gist of it may be expressed in a sentence which, standing by itself, is not intelligible; other sentences locally separate from the principal one may contain the exceptions and the modifications and the interpretations to which that is subject. In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austin’s sense, to be found. Thus the rule that every will must be in writing is a mere fragment—only the limb of a law. It belongs to the rule which fixes the rights of devisees or legatees under a will. That rule in whatever form it may be expressed is, without any straining of language, a command of the legislator. That “every person named by a testator in his last will and testament shall be entitled to the property thereby given him” is surely a command creating rights and duties. After testament add “expressed in writing”; it is still a command. Add further, “provided he be not one of the witnesses to the will,” and the command, with its product of rights and duties, is still there. Each of the additions limits the operation of the command stated imperatively in the first sentence. So with the rule in Shelley’s case. It is resolvable into the rule that every person to whom an estate is given by a conveyance expressed in such and such a way shall take such and such rights. To take another example from recent legislation. A statute passed in 1881 enacts nothing more than this, that an Act of a previous session shall be construed as if “that” meant “this.” It would be futile indeed to force this into conformity with Austin’s definition by treating it as a command addressed to the judges, and as indirectly creating rights to have such a construction respected. As it happens, the section of the previous Act referred to (the Burials Act, 1880) is an undeniable command, addressed to the clergy, and imposing upon them a specific duty. The true command—the law—is to be found in the two sections taken together.

All this confusion arises from the fact that laws are not habitually expressed in imperative terms. Even in a mature system like that of England the great bulk of legal rules is hidden under forms which disguise their imperative quality. They appear as principles, maxims, propositions of fact, generalizations, points of pleading and procedure, and so forth. Even in the statutes the imperative form is not uniformly observed. It might be said that the more mature a legal system is the less do its individual rules take the form of commands. The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises. The institutional works abound in propositions which have no legal significance at all, but which are not distinguished from the true law in which they are embedded by any difference in the forms of expression. Assertions about matters of history, dubious speculations in philology, and reflexions on human conduct are mixed up in the same narrative with genuine rules of law. Words of description are used, not words of command, and rules of law assimilate themselves in form to the extraneous matter with which they are mixed up.

It has been said that Austin himself admitted to some extent the force of these objections. He includes among laws which are not imperative the following :—“declaratory laws, or laws explaining the import of existing positive law, and laws abrogating or repealing existing positive law.” He thus associates them with rules of positive morality and with laws which are only metaphorically so called. This collocation is unfortunate and out of keeping with Austin’s method. Declaratory and repealing laws are as completely unlike positive morality and metaphorical laws as are the laws which he describes as properly so called. And if we avoid the error of treating each separate proposition enunciated by the lawgiver as a law, the cases in question need give us no trouble. Read the declaratory and the repealing statutes along with the principal laws which they affect, and the result is perfectly consistent with the proposition that all law is to be resolved into a species of command. In the one case we have in the principal taken together with the interpretative statute a law, and whether it differs or not from the law as it existed before the interpretative statute was passed makes no difference to the true character of the latter. It contributes along with the former to the expression of a command which is a true law. In the same way repealing statutes are to be taken together with the laws which they repeal—the result being that there is no law, no command, at all. It is wholly unnecessary to class them as laws which are not truly imperative, or as exceptions to the rule that laws are a species of commands. The combination of the two sentences in which the lawgiver has expressed, himself, yields the result of silence—absence of law—which is in no way incompatible with the assertion that a law, when it exists, is a kind of command. Austin’s theory does not logically require us to treat every Act of Parliament as being a complete law in itself, and therefore to set aside a certain number of Acts of Parliament as being exceptions to the great generalization which is the basis of the whole system.

Rules of procedure again have been alleged to constitute another exception. They cannot, it is said, be regarded as commands involving punishment if they be disobeyed. Nor is anything gained by considering them as commands addressed to the judge and other ministers of the law. There may be no doubt in the law of procedure a great deal that is resolvable into law in this sense, but the great bulk of it is to be regarded like the rules of interpretation as entering into the substantive commands which are laws. They are descriptions of the sanction and its mode of working. The bare prohibition of murder without any penalty to enforce it would not be a law. To prohibit it under penalty of death implies a reference to the whole machinery of criminal justice by which the penalty is enforced. Taken by themselves, the rules of procedure are not, any more than canons of interpretation, complete laws in Austin’s sense of the term. But they form part of the complete expression of true laws. They imply a command, and they describe the sanction and the mode in which it operates.

A more formidable criticism of Austin’s position is that which attacks the definition of sovereignty. There are countries, it is said, where the sovereign authority cannot by any stretch of language be said to command the laws, and yet where law manifestly exists. The ablest and the most moderate statement of this view is given by Sir Henry Maine in Early History of Institutions, p. 380 :—

“It is from no special love of modern examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian province called the Punjaub, the country of the Five Bivers, in the state in which it was for about a quarter of a century before its annexation to the British Indian empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half military half religious oligarchy known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation; and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took as his revenue a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power, and he exercised it in various ways. But he never made a law. The rules which regulated the lives of his subjects were derived from their immemorial usages, and those rules were administered by domestic tribunals in families or village communities—that is, in groups no larger or little larger than those to which the application of Austin’s principles cannot be effected on his own admission without absurdity.”

So far as the mere size of the community is concerned, there is no difficulty in applying the Austinian theory. In postulating a considerably numerous community Austin was thinking evidently of small isolated groups which could not without provoking a sense of the ridiculous be termed nations. Two or three families, let us suppose, occupying a small island, totally disconnected with any great power, would not claim to be and would not be treated as an independent political community. But it does not follow that Austin would have regarded the village communities spoken of by Alaine in the same light. Here we have a great community, consisting of a vast number of small communities, each independent of the other, and disconnected with all the others, so far as the administration of anything like law is concerned. Suppose in each case that the headman or council takes his orders from Runjeet Singh, and enforces them, each in his own sphere, relying as the last resort on the force at the disposal of the suzerain. The mere size of the separate communities would make no sort of difference to Austin’s theory. He would probably regard the empire of Runjeet Singh as divided into small districts,—an assumption which inverts no doubt the true historical order, the smaller group being generally more ancient than the larger. But provided that the other conditions prevail, the mere fact that the law is administered by local tribunals for minute areas should make no difference to the theory. The case described by Sir Henry Maine is that of the undoubted possession of supreme power by a sovereign, coupled with the total absence of any attempt on his part to originate a law. That no doubt is, as we are told by the same authority, “the type of all Oriental communities in their native state during their rare intervals of peace and order.” The empire was in the main in each case a tax-gathering empire. The unalterable law of the Medes and Persians was not a law at all but an occasional command. So again Alaine puts his position clearly in the following sentences :—“The Athenian assembly made true laws for residents on Attic territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating empire.” Sir Henry Alaine, it will be observed, does not say that the sovereign assembly did not command the laws in the subject islands—only that it did not legislate.

In the same category may be placed without much substantial difference all the societies that have ever existed on the face of the earth previous to the point at which legislation becomes active. Sir Henry Alaine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And formal legislation, as he has elsewhere shown, comes late in the history of most legal systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent Governments have up to a certain point left the law to grow by other means than formal enactments. What is ex facie more opposed to the idea of a sovereign’s commands than the conception of schools of law Î Does it not “sting us with a sense of the ridiculous” to hear principles which are the outcome of long debates between Proculians and Sabinians described as commands of the emperor? How is sectarianism in law possible if the sovereign’s command is really all that is meant by a law? No mental attitude is more common than that which regards law as a natural product—discoverable by a diligent investigator, much in the same way as the facts of science or the principles of mathematics. The introductory portions of Justinian’s Institutes are certainly written from this point of view, which may also be described without much unfairness as the point of view of German jurisprudence. And yet the English jurist who accepts Austin’s postulate as true for the English system of our own day would have no difficulty in applying it to German or Roman law generated under the influence of such ideas as these.

Again, referring to the instance of Runjeet Singh, Sir H. Alaine says no doubt rightly that “he never did or could have dreamed of changing the civil rules under which his subjects lived. Probably he was as strong a believer in the independent obligatory force of such rules as the elders themselves who applied them.” That too might be said with truth of states to which the application of Austin’s system would be far from difficult. The sovereign body or person enforcing the rules by all the ordinary methods of justice might conceivably believe that the rules which he enforced had an obligatory authority of their own, just as most lawyers at one time, and possibly some lawyers now, believe in the natural obligatoriness, independently of courts or parliaments, of portions of the law of England. But nevertheless, whatever ideas the sovereign or his delegates might entertain as to “the independent obligatory force” of the rules which they enforce, the fact that they do enforce them distinguishes them from all other rules. Austin seizes upon this peculiarity and fixes it as the determining characteristic of positive law. When the rule is enforced by a sovereign authority as he defines it, it is his command, even if he should never so regard it himself, or should suppose himself to be unable to alter it in a single particular.

It may be instructive to add to these examples of dubious cases one taken from what is called ecclesiastical law. In so far as this has not been adopted and enforced by the state, it would, on Austin’s theory, be, not positive law, but either positive morality or possibly a portion of the Divine law. No jurist would deny that there is an essential difference between so much of ecclesiastical law as is adopted by the state and all the rest of it, and that for scientific purposes this distinction ought to be recognized. How near this kind of law approaches to the positive or political law may be seen from the sanctions on which it depended. ‘ ‘ The theory of penitential discipline was this: that the church was an organized body with an outward and visible form of government; that all who were outside her boundaries were outside the means of divine grace; that she had a command laid upon her, and authority given to her, to gather men into her fellowship by the ceremony of baptism, but, as some of those who were admitted proved unworthy of their calling, she also had the right by the power of the keys to deprive them temporarily or absolutely of the privilege of communion with her, and on their amendment to restore them once more to church membership. On this power of exclusion and restoration was founded the system of ecclesiastical discipline. It was a purely spiritual jurisdiction. It obtained its hold over the minds of men from the belief, universal in the catholic church of the early ages, that he who was expelled from her pale was expelled also from the way of salvation, and that the sentence which was pronounced by God’s church on earth was ratified by Him in heaven ’’ (Smith’s Dictionary of Christian Antiquities, art. “Penitence,” p. 1587).

These laws are not the laws of the jurists, though they resemble them closely in many points—indeed in all points except that of the sanction by which they are enforced. It is a spiritual not a political sanction. The force which lies behind them is not that of the sovereign or the state. When physical force is used to compel obedience to the laws of the church they become positive laws. But so long as the belief in future punishments or the fear of the purely spiritual punishments of the church is sufficient to procure obedience to them, they are to be regarded as commands, not by the state, but by the church. That difference Austin makes essential. In rejecting spiritual laws from the field of positive law, his example would be followed by jurists who would nevertheless include other laws, not ecclesiastical in purpose, but enforced by very similar methods.

Compare the following account of “the mode in which justice was administered in the neighbourhood of Benares towards the end of the last century,” extracted from a very valuable work on the scientific study of Hindu law by Mr J. H. Nelson. “The recognized mode of compelling a debtor to pay up appears to have been by sending a Brahman to do dharna before his house with a dagger or a bowl of poison to be used by the Brahman on his own body if the debtor proved obstinate. When the tax collector gave too much trouble, a ryot would sometimes erect a koor or pile of wood and burn an old woman on it by way of bringing sin on the head of the tormentor. The lex talionis obtained in the following shape. Persons who considered themselves aggrieved by acts of their enemies would kill their own wives and children, in order, as we may suppose, to compel their enemies to do a similar act to their own hurt. Thus two Brahmans cut off their mother’s head to spite a foe.” The same author states that he is ‘ ‘ firmly persuaded that the normal condition of India has ever been to be without what Europeans understand by laws and law courts.”

So far as the question is one of the propriety of language, the burden in this case is decidedly against those who would extend the phraseology of law to such rules as these. Can we with any advantage speak of one person having a right against another, when his remedy consists in starving himself in order to bring sin upon the head of his opponent or compel him to do likewise 1 If dharna or anything like it suffices to keep a community to its customary practices, is it possible to express such customs in terms applicable to the laws of European societies? Or is any harm done by saying that the difference between the two is so great that the former cannot be regarded as positive laws at all?

The true criterion in all these cases is, neglecting the shape and circumstances in which the rules in question may have appeared, to ask by what means compliance with them is enforced. Austin’s theory in the end comes to this, that true laws are in all cases obeyed in consequence of the application of regulated physical force by some portion of the community. That is a fair paraphrase of the position that laws are the commands of the sovereign, and is perhaps less objectionable inasmuch as it does not imply or suggest anything about the forms in which laws are enunciated. All rules, customs, practices, and laws— or by whatever name these uniformities of human conduct may be called—have either this kind of force at their back or they have not. Is it worth while to make this difference the basis of a scientific system or not? Apparently it is. If it were a question of distinguishing between the law of the law courts and the laws of fashion no one would hesitate. Why should laws or rules having no support from any political authority be termed laws positive merely because there are no other rules in the society having such support?

The question may perhaps be summed up as follows. Austin’s definitions are in strict accordance with the facts of government in civilized states; and, as it is put by Sir H. Maine, certain assumptions or postulates having been made, the great majority of Austin’s positions follow as of course or by ordinary logical process. But at the other extreme end of the scale of civilization are societies to which Austin himself refuses to apply his system, and where, it would be conceded on all sides, there is neither political community nor sovereign nor law,—none of the facts which jurisprudence assumes to exist. There is an intermediate stage of society in which, while the rules of conduct might and generally would be spoken of as laws, it is difficult to trace the connexion between them and the sovereign authority whose existence is necessary to Austin’s system. Are such societies to be thrown out of account in analytical jurisprudence, or is Austin’s system to be regarded as only a partial explanation of the field of true law, and his definitions good only for the laws of a portion of the world? The true answer to this question appears to be that when the rules in any given case are habitually enforced by physical penalties, administered by a determinate person or portion of the community, they should be regarded as positive laws and the appropriate subject matter of jurisprudence. Rules which are not so enforced, but are enforced in any other way, whether by what is called public opinion, or spiritual apprehensions, or natural instinct, are rightly excluded from that subject matter. In all stages of society, savage or civilized, a large body of rules of conduct, habitually obeyed, are nevertheless not enforced by any state sanction of any kind. Austin’s method assimilates such rules in primitive society, where they subserve the same purpose as positive laws in an advanced society, not to the positive laws which they resemble in purpose but to the moral or other rules which they resemble in operation. If we refuse to accept this position we must abandon the attempt to frame a general definition of law and its dependent terms, or we must content ourselves with saying that law is one thing in one state of society and another thing in another. On the ground of clearness and convenience Austin’s method is, we believe, substantially right, but none the less should the student of jurisprudence be on his guard against such assumptions as that legislation is a universal phenomenon, or that the relation of sovereign and subject is discernible in all states of human society. And a careful examination of Sir Henry Maine’s criticism will show that it is devoted not so much to a rectification of Austin’s position as to correction of the misconceptions into which some of his disciples may have fallen. It is a misconception of the analysis to suppose that it involves a difference in juridical character between custom not yet recognized by any judicial decision and custom after such recognition. There is no such difference except in the case of what is properly called “judicial legislation”—wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. The fact that no previous instance of its recognition by a court of justice can be produced is not material. A lawyer before any such decision was given would nevertheless pronounce the custom to be law,—with more or less hesitation according as the marks of a legal custom were obvious or not. The character of the custom is not changed when it is for the first time enforced by a court of justice, and hence the language used by Sir Henry Maine must be understood in a very limited sense. “Until customs are enforced by courts of justice”—so he puts the position of Austin — they are merely “positive morality,” rules enforced by opinion; but as soon as courts of justice enforce them they become commands of the sovereign, conveyed through the judges who are his delegates or deputies. This proposition, on Austin’s theory, would only be true of customs as to which these marks were absent. It is of course true that when a rule enforced only by opinion becomes for the first time enforceable by a court of justice—which is the same thing as the first time of its being actually enforced—

its juridical character is changed. It was positive morality; it is now law. So it is when that which was before the opinion of the judge only becomes by his decision a rule enforceable by courts of justice. It was not even positive morality but the opinion of an individual; it is now law.

The most difficult of the common terms of law to define is right ; and, as right rather than duty is the basis of classification, it is a point of some importance. Assuming the truth of the analysis above discussed, we may go on to say that in the notion of law is involved an obligation on the part of some one, or on the part of every one, to do or forbear from doing. That obligation is duty; what is right? Dropping the negative of forbearance, and taking duty to mean an obligation to do something, with the alternative of punishment in default, we find that duties are of two kinds. The thing to be done may have exclusive reference to a determinate person or class of persons, on whose motion or complaint the sovereign power will execute the punishment or sanction on delinquents; or it may have no such reference, the thing being commanded, and the punishment following on disobedience, without reference to the wish or complaint of individuals. The last are absolute duties, and the omission to do, or forbear from doing, the thing specified in the command is in general what is meant by a crime. The others are relative duties, each of them implying and relating to a right in some one else. A person has a right who may in this way set in operation the sanction provided by the state. In common thought and speech, however, right appears as something agood deal more positive and definite than this,— as a power or faculty residing in individuals, and suggesting not so much the relative obligation as the advantage or enjoyment secured thereby to the person having the right. Mr J. S. Mill, in a valuable criticism of Austin, suggests that the definition should be so modified as to introduce the element of “advantage to the person exercising the right.” But it is exceedingly difficult to frame a positive definition of right which shall not introduce some term at least as ambiguous as the word to be defined. Professor Holland defines right in general as a man’s “capacity of influencing the acts of another by means, not of his own strength, but of some authority or power external to himself.” Direct influence exercised by virtue of one’s own strength, physical or otherwise, over another’s acts, is “might” as distinguished from right. When the indirect influence is the opinion of society, we have a “moral right.” When it is the force exercised by the sovereign, we have a legal right. It would be more easy, no doubt, to pick holes in this definition than to frame a better one.

The distinction between rights available against determinate persons and rights available against all the world, jura in personam and jura in rem, is of fundamental importance. The phrases are borrowed from the classical jurists, who used them originally to distinguish actions according as they were brought to enforce a personal obligation or to vindicate rights of property. The owner of property has a right to the exclusive enjoyment thereof, which avails against all and sundry, but not against one person more than another. The parties to a contract have rights available against each o’her, and against no other persons. The jus in rem is the badge of property; the jus in personam is a mere personal claim.

That distinction in rights which appears in the division of law into the law of persons and the law of things is thus stated by Austin. There are certain rights and duties, with certain capacities and incapacities, by which persons are determined to various classes. The rights, duties, <fcc., are the condition or status of the person; and one person may be invested with many status or conditions. The law of persons consists of the rights, duties, &c., constituting conditions or status; the rest of the law is the law of things. The separation is a mere matter of convenience, but of convenience so great that the distinction is universal. Thus any given right may be exercised by persons belonging to innumerable classes. The person w ho has the right may be under twenty-one years of age, may have been born in a foreign state, may have been convicted of crime, may be a native of a particular county, or a member of a particular profession or trade, &c.; and it might very well happen, with reference to any given right, that, while persons in general, under the circumstances of the case, would enjoy it in the same way, a person belonging to any one of these classes would not. If belonging to any one of those classes makes a difference not to one right merely but to many, the class may conveniently be abstracted, and the variations in rights and duties dependent thereon may be separately treated under the law of persons. The personality recognized in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter. See Holland’s Elements of Jurisprudence, p. 90.

The author last cited disapproves of the prominence given by Austin to this distinction, instead of that between public and private law. This, according to Professor Holland, is based on the public or private character of the persons with whom the right is connected, public persons being the state or its delegates. Austin, lιolding that the state cannot be said to have legal rights or duties, recognizes no such distinction. The term “public law” he confines strictly to that portion of the law which is concerned with political conditions, and which ought not to be opposed to the rest of the law, but “ought to be inserted in the law of persons as one of the limbs or members of that supplemental department.”

Lastly, following Austin, the main division of the law of things is into (1) primary rights with primary relative duties, (2) sanctioning rights with sanctioning duties (relative or absolute). The former exist, as it has been put, for their own sake, the latter for the sake of the former. Rights and duties arise from facts and events; and facts or events which are violations of rights and duties are delicts or injuries. Rights and duties which arise from delicts are remedial or sanctioning, their object being to prevent the violation of rights which do not arise from delicts.

We are inclined to agree with the view expressed by Mr F. Harrison (^Fortnightly Review, vol. xxxi.), that the rearrangement of English law on the basis of a scientific classification, whether Austin’s or any other, would not result in advantages at all compensating for its difficulties. If anything like a real code were to be attempted, the scientific classification would be the best; but in the absence of that, and indeed in the absence of any habit on the part of English lawyers of studying the system as a whole, the arrangement of facts does not very much matter. It is essential, however, to the abstract study of the principles of law. Scientific arrangement might also be observed with advantage in treatises affecting to give a view of the whole law, especially those which are meant for educational rather than professional uses. The only book worth naming of that kind is Blackstone’s Commentaries, which, in the hands of successive annotators, retains all its original defects of arrangement. It has simply been brought down to date, and its last condition is, from every point of view but that, worse than its first. As an example of the practical application of a scientific system of classification to a complete body of law, we may point to Professor W. A. Hunter’s elaborate Exposition of Roman Law (London, 1876).

It is impossible to present the conclusions of historical jurisprudence in anything like the same shape as those which we have been discussing. As yet historical jurisprudence is little more than a method, and its results are generalizations of more or less plausibility or probability. The inquiry is in that stage which is indicated in one way by describing it as a philosophy. The philosophy of the history of law is all that it can yet claim to be. It resembles, and is indeed only part of, the study which is described as the philosophy of history. Its chief interest hitherto has been in the light which it has thrown upon rules of law and legal institutions which had been and are generally contemplated as positive facts merely, without reference to their history, or have been associated historically with principles and institutions not really connected with them.

The historical treatment of law displaces some very remarkable misconceptions. Peculiarities and anomalies abound in every legal system; and, as soon as laws become the special study of a professional class, some mode of explaining or reconciling them will be resorted to. One of the prehistorical ways of philosophizing about law was to account for what wanted explanation by some theory about the origin of technical words. This implies some previous study of words and their history, and is an instance of the deep-seated and persistent tendency of the human mind to identify names with the things they represent. The Institutes of Justinian abound in explanations, founded on a supposed derivation of some leading term. Testamentum, we are told, ex eo appellatur quod testatio mentis est. A testament was no doubt, in effect, a declaration of intention on the part of the testator when this was written. But the mentum is a mere termination, and has nothing to do with mens at all. The history of testaments, which, it may be noticed incidentally, has been developed with conspicuous success, gives a totally different meaning to the institution from that which was expressed by this fanciful derivation. So the perplexing subject of possessio was supposed in some way to be explained by the derivation from pono and sedeo, —quasi sedibus p>ositio. Posthumi was supposed to be a compound of post and humus. These examples belong to the class of rationalizing derivations with which students of philosophy are familiar. Their characteristic is that they are suggested by some prominent feature of the thing as it then appeared to observers,—which feature thereupon becomes identified with the essence of the thing at all times and places.

Another prehistorical mode of explaining law may be described as metaphysical. It conceives of a rule or principle of law as existing by virtue of some more general rule or principle in the nature of things. Thus, in the English law of inheritance, until the passing of the recent Inheritance Act, an estate belonging to a deceased intestate would pass to his uncle or aunt, to the exclusion of his father or other lineal ancestor. This anomaly from an early time excited the curiosity of lawyers, and the explanation accepted in the time of Bracton was that it was an example of the general law of nature :—“Descendit itaque jus quasi ponderosum quid cadens deorsum recta linea vel transversali, et nunquam reascendit ea via qua descendit.” The author of an excellent summary of the history of the law of real property (Mr Digby) supposes that the “rule really results from the associations involved in the word descent.” It seems more likely, however, that these associations explained rather than that they suggested the rule, —that the omission of the lineal ancestor existed in custom before it was discovered to be in harmony with the law of nature. It would imply more influence than the reasoning of lawyers is likely to have exercised over the development of law at that time to believe that a purely artificial inference of this kind should have established so very remarkable a rule. However that may be, the explanation is typical of a way of looking at law which was common enough before the dawn of the historical method. Minds capable of reasoning in this way were, if possible, farther removed from the conceptions implied in the reasoning of the analytical jurists than they were from the historical method itself. In this connexion it may be noticed that the great work of Blackstone marks an era in the development of legal ideas in England. It was not merely the first, as it still remains the only, adequate attempt to expound the leading principles of the whole body of law, but it was distinctly inspired by a rationalizing method. Blackstone tried not merely to express but to illustrate legal rules, and he had a keen sense of the value of historical illustrations. He worked of course with the materials at his command. His manner and his work are obnoxious alike to the modern jurist and to the modern historian. He is accused by the one of perverting history, and by the other of confusing the law. But his scheme is a great advance on anything that had been attempted before; and, if his work has been prolific in popular fallacies, at all events it enriched English literature by a conspectus of the law, in which the logical connexion of its principles inter se, and its relation to historical facts, were distinctly if erroneously recognized.

While the historical method has superseded the verbal and metaphysical explanation of legal principles, it has apparently, in some cases, come into conflict with the conclusions of the analytical school. The difference between the two systems comes out most conspicuously in relation to customs. There is an unavoidable break in the analytical method between societies in which rules are backed by regulated physical force and those in which no such force exists. At what point in its development a given society passes into the condition of “an independent political society” it may not be easy to determine, for the evidence is obscure and conflicting. To the historical jurist there is no such breach. 'The rule which in one stage of society is a law, in another merely a rule of “positive morality,” is the same thing to him throughout. By a recent Act of Parliament the Ulster custom of tenant right and other analogous customs were legalized. For the purposes of analytical jurisprudence there is no need to go beyond the Act of Parliament. The laws known as the Ulster custom are laws solely in virtue of the sovereign government. Between the law as it now is and the custom as it existed before the Act there is all the difference in the world. To the historical jurist no such separation is possible. His account of the law would not only be incomplete without embracing the precedent custom, but the Act which made the custom law is only one of the facts, and by no means the most significant or important, in the history of its development. An exactly parallel case is the legalization in England of that customary tenant right known as copyhold. It is to the historical jurist exactly the same thing as the legalization of the Ulster tenant right. In the one case a practice was made law by formal legislation, and in the other without formal legislation. And there can be very little doubt that in an earlier stage of society, when formal legislation had not become the rule, the custom would have been legalized relatively much sooner than it actually was.

Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished, and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon them. The recognized science—and such it may now be considered to be—with which historical jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. Legal systems are related together like languages and dialects, and the investigation in both cases brings us back at last to the meagre and obscure records of savage custom and speech. A great master of the science of language (Max Müller) has indeed distinguished it from jurisprudence, as belonging to a totally different class of sciences. “It is perfectly true,” he says, “that if language be the work of man in the same sense in which a statue, or a temple, or a poem, or a law are properly called the works of man, the science of language would have to be classed as an historical science. We should have a history of language as we have a history of art, of poetry, and of jurisprudence; but we could not claim for it a place side by side with the various branches of natural history.” Whatever be the proper position of either philology or jurisprudence in relation to the natural sciences, it would not be difficult to show that laws and customs on the whole are equally independent of the efforts of individual human wills,—which appears to be what is meant by language not being the work of man. The most complete acceptance of Austin’s theory that law everywhere and always is the command of the sovereign does not involve any withdrawal of laws from the domain of natural science, does not in the least interfere with the scientific study of their affinities and relationships. Max Müller elsewhere illustrates his conception of the different relation of words and laws to the individual will by the story of the emperor Tiberius, who was reproved for a grammatical mistake by Marcellus, whereupon Capito, another grammarian, observed that, if what the emperor said was not good Latin, it would soon be so. “Capito,” said Marcellus, “is a liar; for, Caesar, thou canst give the Roman citizenship to men, but not to words.” The mere impulse of a single mind, even that of a Roman emperor, however, probably counts for little more in law than it does in language. Even in language one powerful intellect or one influential academy may, by its own decree, give a bent to modes of speech which they would not otherwise have taken. But whether law or language be conventional or natural is really an obsolete question, and the difference between historical and natural sciences in the last result is one of names.

The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm’s law for jurisprudence; but something has been done in that direction by the discovery of the analogous processes and principles which underlie legal systems having no external resemblance to each other. It happens, however, that the historical study of law has, for the most part, been confined to a single system—the Roman law. The Roman law presents itself to the historical student in two different aspects. It is, regarded as the law of the Roman republic and empire, a system whose history can be traced throughout a great part of its duration with certainty, and in parts with great detail. It is, moreover, a body of rationalized legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into the jurisprudence of the whole of modern Europe on the strength of their own abstract authority,—so much so that the continued existence of the civil law, after the fall of the empire, is entitled to be considered one of the first discoveries of the historical method. Alike, therefore, in its original history, as the law of the Roman state, and as the source from which the fundamental principles of modern laws have been taken, the Roman law presented the most obvious and attractive subject of historical study. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recension of those of Gaius, the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian, and were passed over by him without notice. Roman law has accordingly been the main subject of historical study, and the conclusions of jurisprudence are to a great extent generalizations suggested by the history of Roman law.

Nowhere did Roman law in its modern aspect give a stronger impulse to the study of legal history than in Germany. The historical school of German jurists led the reaction of national sentiment against the proposals for a general code made by Thibaut. They were accused by their opponents of setting up the law of past times as intrinsically entitled to be observed, and they were no doubt strongly inspired by reverence for customs and traditions. Through the examination of their own customary laws, and through the elimination and separate study of the Roman element therein, they were led to form general views of the history of legal principles. In the hands of Savigny, the greatest master of the school, the historical theory was developed into a universal philosophy of law, covering the ground which we should assign separately to jurisprudence, analytical and historical, and to theories of legislation. There is not in Savigny’s system the faintest approach to the Austinian analysis. The range of it is not the analysis of law as a command, but that of a Pechtsverhältniss or legal relation. Far from regarding law as the creation of the will of individuals, he maintains it to be the natural outcome of the consciousness of the people, like their social habits or their language. And he assimilates changes in law to changes in language. “As in the life of individual men no moment of complete stillness is experienced, but a constant organic development, such also is the case in the life of nations, and in every individual element in which this collective life consists; so we find in language a constant formation and development, and in the same way in law.” German jurisprudence is darkened by metaphysical thought, and weakened, as we believe, by defective analysis of positive law. But its conception of laws is exceedingly favourable to the growth of an historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles. Such, for instance, is Savigny’s famous examination of the law of possession.

There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law 'may exist in the English system has come in, whether by conscious adaptation or otherwise, ab extra ; it is not of the essence of the system, nor does it form a large portion of the system. And, while English law is thus historically independent of Roman law, it is in all respects worthy of being associated with it on its own merits. Its originality, or, if the phrase be preferred, its peculiarity, is not more remarkable than the intellectual qualities which have gone to its formation—the ingenuity, the rigid logic, the reasonableness, of the generations of lawyers and judges who have built it up. This may seem extravagant praise for a legal system, the faults of which are and always have been matter of daily complaint, but it would be endorsed by all unprejudiced students. What men complain of is the practical hardship and inconvenience of some rule or process of law. They know, for example, that the law of real property is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real property, which rests to this day on ideas that have been buried for centuries, has nevertheless the qualities we have named. So too with the law of procedure as it existed under the “science” of special pleading. The greatest practical law reformer, and the severest critic of existing systems that has ever appeared in any age or country, Jeremy Bentham, has admitted this:—“Confused, indeterminate, inadequate, ill-adapted, and inconsistent as to a vast extent the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision, yet in the character of a repository of such cases it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political states, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement—in a word, all points taken together, in constructiveness—to that which may be seen to be afforded by the collection of English reports of adjudged cases” (Bentham’s Worh, vol. iv. p. 460). On the other hand, the fortunes of English jurisprudence are not unworthy of comparison even with the catholic position of Roman law. In the United States of America, in India, and in the vast colonial empire, the common law of England constitutes most of the legal system in actual use, or is gradually being superimposed upon it. It would hardly be too much to say that English law of indigenous growth, and Roman law, between them govern the legal relations of the whole civilized world. Nor has the influence of the former on the intellectual habits and the ideas of men been much if at all inferior. Those who set any store by the analytical jurisprudence of the school of Austin will be glad to acknowledge that it is pure outcome of English law. Sir Henry Maine has associated its rise with the activity of modern legislatures, which is of course a characteristic of the societies in which English laws prevail. And it would not be difficult to show that the germs of Austin’s principles are to be found in legal writers who never dreamed of analysing a law. It is certainly remarkable, at all events, that the acceptance of Austin’s system is as yet confined strictly to the domain of English law. Sir H. Maine has found no trace of its being even known to the jurists of the Continent, and it would appear that it has been equally without influence in Scotland, which, like the Continent, is essentially Roman in the fundamental elements of its jurisprudence.

While, however, Roman law has had many historians, and while it has been, in Germany at least, the subject of a good deal of historical philosophy, English law can hardly yet be said to have had its historian, much less its philosopher. What is wanted here, in the first place, is the setting forth of the materials in a condition fit for examination. This has been rightly described as perhaps the most important intellectual want of the present time. But in the meantime the revival of the study of Roman law in England has made the comparison of Roman and English law a matter of course in legal education, and has undoubtedly led, in accordance, no doubt, with the bent of contemporary thought, to the formation in England of what may not improperly be called a great school of historical jurists.

By far the most considerable contribution made by England to historical jurisprudence is the writings of Sir Henry Maine. The first of these (Ancient Law), published in 1861, has probably had a more profound influence on contemporary thought than any other book of this generation. The Early History of Institutions and Village Communities in the East and West have since followed. In Ancient Law Sir Henry Maine proposes to trace the connexion of the subject with the early history of society and its relation to modern ideas. Taking the Roman law as a typical system, he revealed for the first time to English readers the connexion between the principles of forgotten lawyers and, not merely the legal ideas, but the moral commonplaces of our own time. The book undermined what had been accepted as first principles by showing that they had a history. It gratified the intellectual sense by the brilliant identification of legal ideas, obscured by differences of time and place and circumstance. It is not surprising that its influence has been even more extensive among educated laymen than among professional lawyers, for the latter are condemned by custom to disregard everything in their science but its relation to the business of the day. But Ancient Law set the attitude of regarding a legal rule not as an isolated fact but as the last link in an historical series. In the better sort of legal text-books which have recently appeared this attitude is discernible, and on the whole to the advantage of the exposition, even for the purposes of practice.

At the present moment conclusions based on an examination of the history of legal systems stand subject to correction by the results of the investigation, which is being conducted with so much diligence and success, into the condition of savage races. If it be a right inference that the phenomena of barbarism, as it exists at the present day, represent a condition through which civilized societies have passed, it is obvious that the origin which recorded history suggests for legal ideas and practices must not be taken as absolute. It so happens that prehistoric society has hitherto engaged a much larger share of attention than the history of laws. Conspicuous among the writers who have made important contributions to the literature of this subjectare Mr E. B. Tylor, Sir J. Lubbock, Mr Lewis Morgan, and especially Mr J. F. M*Lennan. Many of the com elusions to which these inquirers have been led do not affect any position taken up by historical jurists, but others tend to show that social forms which, seen from the side of legal history, appeared to be the absolute beginning of modern institutions, may themselves have been the result of a long evolution. The most conspicuous example, not of antagonism, but of what may be called disconnexion, between juridical and naturalistic theories of the origin of society, is to be found in the Family (q.v.). Here it need only be said that the part played by the family in the development of legal ideas has been fully elaborated by historical jurists, sometimes with the inference, implied rather than expressed, that it marks the beginning of the history, or at least is to be found in the earliest period of the race of which we have trustworthy evidence. Substantially the conclusions of the jurists as to the influence of the conception of the family on historic law remain unimpaired. It is true that a great part of the “legal ideas of civilized races may be traced to this conception, and that the history of their development is the history of its slow unwinding.” But that there is no anterior condition to that in which the patriarchal family—“a group of men, women, and slaves, of animate and inanimate property, all connected together by subjection to the paternal power of the chief of the household ”— is the unit of society, is not, so far as we are aware, affirmed by any historical jurist. The evidence on that question will be found in the article Family above mentioned.

Another natural group whose place in legal history has recently been the subject of careful investigation is the village community. In one of its forms—the township— “it is an organized self-acting group of Teutonic families, exercising a common proprietorship over a definite tract of land, its mark, cultivating its domain on a common system, and sustaining itself by the produce. It is described by Tacitus in the Germania as the vicus; it is well known to have been the proprietary and even the political unit of the earliest English society; it is allowed to have existed among the Scandinavian races, and it survived to so late a date in the Orkney and Shetland islands as to have attracted the attention of Sir Walter Scott” (Maine, Village Communities, p. 10). Founding on the researches of G. L. von Maurer, of Nasse, and others on the Teutonic mark, and comparing them with the observed phenomena of the village community in India, Sir H. Maine has shown, in the work just cited, how this widely diffused institution illustrates legal history, more particularly with reference to property in land, and to the conservation of customary law.

The lateness of the intervention of the state or sovereign as a direct legislator has been adverted to in the previous discussion. Formal law-making by the state is everywhere posterior to its intervention as the enforcer of law. Not that law-making was consciously separated from judging, or that the assembly or officer who represented the state was conceived as exclusively judicial. But the state, whether represented by a public assembly or by an officer, undertook to decide disputes between man and man long before it presumed to say on what principle such disputes should be decided. The judge everywhere comes before the legislator, if indeed terms so purely modern can be applied without danger to early law. That the pronouncements of the judge were themselves a source of law,—that he created the law which he professed to declare,—is true in a sense which, however, requires us to obliterate the most conspicuous of all the duties of a judge conceived in relation to mature law. That the law existed before the judgment, that the judgment should simply declare preexisting law, that ex post facto laws are unjust—are the inveterate beliefs and prejudices of a civilized society, the strength of which is manifested by the fictions elsewhere noticed as concealing the manufacture of new law. No such conception is to be imported into the notions of early society as to the right and wrong of civil justice. The office of the judge was to settle disputes, to do right where wrong had been done; and whether his decision was founded on law, or custom, or religion, or on personal wisdom or inspiration, was a question which we cannot conceive as being asked, when these things were not distinguished in thought.

A conclusion suggested by the earliest forms of procedure in Roman law is that the intervention of the judge is originally that of a private arbitrator. The legis actio sacramenti retained down to a very late period certain symbolical proceedings, in which the features of a private quarrel were simulated. It was a petrified legal drama, like that played by the vouchers in the English action of ejectment. The parties wrangle over the disputed property, the magistrate interposes, and they agree to abide by his decision, each staking a deposit on the justice of his case. Maine felicitously compares these formalities with the trial scene depicted on the shield of Achilles in the Iliad, in which the sacramentum is represented by two talents of gold to go to the judge who shall best decide the points in dispute in the opinion of the spectators. The reward given to the private arbitrator has become in legal symbolism the fee payable to the court on the hearing of the cause. “In confirmation of this view,” says Maine, “it may be added that many observers of the oldest judicial usages of modern Europe have remarked that the fines inflicted by courts on offenders were originally sacramenta ” (Ancient Laιv, p. 378). The symbolism of another legis actio is susceptible of a similar interpretation. The condictio was a personal action taking its name from the notification to the defendant to appear before the judge on a day named, and it simulated a quarrel settled, not by the interposition of the arbitrator, but by agreement of the parties in the form of a wager, to be decided by the arbitrator at a future time. It is consistent with this view cf the first manifestations of judicial functions that early as compared with mature law should assign so large a place to mere procedure. The adjective law, as it is now called, was the first portion of the law to take definite shape, and long maintained its place in the foreground of the system. When a special class in society, whether an aristocratic or priestly caste or a profession, became, as was almost universally the case, the exclusive custodians of the law, the formalities of procedure were their most important secrets. It is represented as a revolution in Roman society when the clerk of one of the aristocratic lawyers divulged to the public his master’s notes for the conduct of legal proceedings. And at all times, it may be said, the law of procedure or practice is in a special sense the law of the professional lawyer, his knowledge of which makes him a skilled craftsman.

The more definite the judiciary power the more do we approach the state of things in which the postulates of analytical jurisprudence are true. Another mark of maturing law is its expression in writing, which, while it destroys the secret monopoly of a class, tends to develop the separate profession of free practising lawyers, who in all progressive societies count as the most powerful instrument for moulding the shape of the law. The influence of lawyers upon law is one of the topics on which the comparison of English and Roman law throws a flood of light, but its illustration would carry us beyond our present limits. Nor can we do more than allude to the importance tentatively assigned by Maine to the question whether a written law comes relatively early or late in the history of a nation. He appears to hold that the relatively early code of the Romans saved them from that degeneration of custom which takes place when it is transmitted by oral tradition from one generation to another.

We have discussed elsewhere, under the headings Equity and Fictions, two of the modes by which legal changes have been brought about indirectly. Direct law-making by the sovereign power, there is reason to believe, is not only everywhere later than these agencies, but its activity is progressive, and constantly tends to displace them. A glance at the English statute-book will show that the legislature at the present day undertakes the deliberate alteration of the law to a much greater extent than it has ever done before. A rough illustration is the fact that the chronological table of the statutes from 1235 to 1877 covers over three hundred pages, of which fully two-thirds are occupied with the legislation of the last hundred years. This activity varies of course at different times, and the variations even in recent times have been remarkable. And, large as are the contributions of modern parliaments to the law, it is notorious that but for defects in the legislative machinery they would be much larger. Nor is this activity to be accounted for by the theory that the domain of law is more intrusive than in earlier times. There has undoubtedly been within the last generation a steady increase in the control asserted by the state over the habits of its citizens, for some account of which reference may be made to the article Government. But on the whole the range of action with which the English law declines to interfere is probably as great now as it ever has been in civilized societies. The true explanation is that parliament has effectually secured for itself exclusive authority as the source of legal changes. The violent assault of Bentham on judiciary law was but the echo of the lesson taught by the English judges as to omnipotence of parliament, and thoroughly understood and accepted by popular opinion. To that is due the caution, not to say timidity, which now characterizes the judicial interpretation of statutes. The courts adhere to the literal meaning of the enactment unless compelled to open it by its too frequent absurdity or self-contradiction. If there is any way out of a difficulty which will not involve the slightest addition to the enacted law, that will be the way followed by judicial decision, This attitude is a complete reversal of that which once prevailed in the courts, when the law embodied in decided cases, pure drawn from the fountains of justice, was deemed superior in dignity to the enactments of an unlearned parliament. The tribunals, in so far as they now make law, operate much more freely on the cases than on the statutes.

The consequence of this relation of the judiciary and the legislature is that, while great reforms are no doubt accelerated, small reforms have to wait. Parliament does in a single session that which would have taken ages to accomplish under the natural agencies of equity and fiction, and much which would never have been brought about by these agencies at all. But the capacity of parliament is limited, and so is its foresight. The work of legislation is left incomplete, and the judicature carefully avoids completing it, leaving the legislature to take it up again when it may. An instance in point is the late history of the law of evidence. This portion of the law grew to maturity in the courts, whose creation it was. It has been wholly transformed by direct legislative enactment (under the influence of Benthamite principles), Act after Act being passed as occasion pointed out defects in what had already been accomplished. One of the latest Acts on the subject simply enables parties and their husbands or wives to give evidence in a certain class of indictments. The substitution of an affirmation for an oath has been carried out in the same piecemeal fashion, the courts refraining from developing the principle of the amendments, as they would have done if the movement had originated with themselves and in an earlier stage of their history. The most portentous example of the intervention of the legislature to complete the exact details of its enactments is the Act previously noticed, which orders the word “this” to be interpreted as “that.” The defects of existing legislative methods in England result in some defects in the form of the law, which the tribunals are free to criticize but not to correct. An Act of Parliament bears upon its face the marks of the tumultuous discussion of a large popular assembly, and of the compromise which reconciles the opposing views of the two Houses. Very few Acts, no matter what care may be employed in framing them, are promulgated in the form best suited for actual exercise,— in the form which would be given to them by an intelligent legislator, charged with the expression of the principle which parliament is supposed to have sanctioned.

In what has been said regarding the relations of the legislature and the judicature it is not implied that the manufacture of case-law by the latter has ceased. On the contrary, it goes on with yearly increasing volume, and the immense accumulation of decided cases is one of the evils of the present state of the law. The hand of precedent never lay heavier on the conscience of the judge than it does now. The necessary literature of the law is increased by a dozen large volumes every year. The law becomes more voluminous without becoming more elastic or more systematic. The stereotyped judicial habit is to follow absolutely the precedents set by every tribunal of higher rank, and almost absolutely those set by tribunals of coordinate rank. A careful semi-official record has taken the place of the private reports published by lawyers privileged by the courts to take notes of their proceedings. Every case of any importance is recorded and becomes a precedent which the practising lawyer in future must know, and which the judge must follow. The minute detail into which legal literature is thus made to descend is becoming an intolerable load; and it is a question whether some revolution in respect to precedents is not becoming necessary.

Legislation by judges has its counterpart in the use of legislative forms for judicial purposes. Long after legislative and judicial functions have been separated, we find legislative acts serving the purpose of judicial decisions. The history of English law is full of examples, the best known of which is that of divorce. The practice of passing private bills of divorce, at a time when the technical law did not allow of that remedy, hardened into a purely judicial practice. The Act which established the Divorce Court did not in effect do more than create a new and better tribunal. So with the General Enclosure Act, which took over from the legislature the purely judicial work of sanctioning enclosures in proper cases.

Comparative jurisprudence, in the sense in which it is distinguishable from historical jurisprudence, can scarcely be said as yet to have a separate existence. Since Leibnitz projected his youthful scheme for tabulating the laws of all the countries of the world, and exhibiting their correspondence and differences by parallel columns, little or nothing has been done for the comparison of laws except in connexion with history. One special line of study does indeed use what may be called a comparative method. The “conflict of laws” involves at least a contrast of a vast number of important points in which the laws of different nations disagree. The object of the study of this conflict is of the practical kind which comparative jurisprudence as here conceived is meant to subserve. It is to develop some rationale of decisions where two or more discordant rules claim exclusive application to the case. There are circumstances which seem to show that the mere comparison of laws with no other object but that of discovering in how many ways the same thing can be done, and which way is the best, will enter more and more into the higher legal studies. For one thing, the vast increase which has taken place in the means of communication between nations has made a knowledge of each other’s laws a matter of imperative necessity, and has broken down, at least as between the most advanced nations, that barrier of insularity which formerly shut out all suggestions of improvement from abroad. We have already emphasized the marked extent to which this exclusiveness has characterized English law, and we cannot but regard it as typical of a new temper that in preparing for the solution of important problems of legislation, the British Government not unfrequently collects from its agents abroad information as to the solution of the same problems in other countries. An important influence always tending in this direction, and greatly strengthened by the changes to which we have alluded, is that of commerce, and particularly of British commerce. England’s business relations are coextensive with the world; it is a necessity of her business that she should know what view is taken of contracts and the relations arising out of them by the laws of different states. And it is becoming a necessity of the commercial class in all countries that, on fundamental points at least, the principles of law should be everywhere the same. Strenuous efforts, for instance, are now being made for the establishment of a uniform law of negotiable instruments in all countries, and with some prospect of success. (e. r.)