« 이전계속 »
146 JC8 IN TWO SENSES.
justi atque injusti scientia; a definition nearer to the modern conception of moral philosophy. Justitia is used in the sense of the English words uprightness, honesty, integrity; justitia est constans et perpetua voluntas jus suum cuique tribuendi; jus here having its sense of a right, while immediately following^.? is used in the sense of law as a rule,1 juris prsecepta h«ec sunt, honeste vivere, alterum non lsedere, suum cuique tribuere; without indicating the authority which is to determine what is hanestum, what it is alterum laedere, and what is suum cuique, or the right of every man.
§ 150. In the analysis of the law which immediately follows these definitions, the first distinction is made according to the
1 By some of the German jurists, jus—taken in the sense of a rule of action,—jna est norma agendi—is said to have its objective meaning, and when used with the signi6cation of a right,—jus est facultas agendi—it is said to have its subjective sense. Vide Mackeldey's Comp., Introd., § 2. Savigny: Heut R. R., § 5.
It may be doubted whether this designation of the different uses of the word jus— founded on a well known Kantian distinction, is even philosophically correct; because either a law or a right—the effect of a law—may be considered both objectively and subjectively. And it is here important to notice that, in jurisprudence, both are used objectively only, that is, each is regarded as having an existence independent of the moral sense of the concipient person.
The subjective apprehension of jus, in the sense either of a rule or of a right, properly occurs only in ethics, where the law or the right is conceived of as something that is because it ought to be: that is, in fact, as something which results from the moral nature of the concipient: whereas, in jurisprudence, jus—a law, and jus—a right, are conceived of as the result of the will of an assumed legislator.
Bentlmm, Introd. Pr. Morals and Legisl., ch. XVII., 23, note, employs the terms abstract and concrete to designate the subjective and objective conceptions of jus in the sense of the rule—norma agendi. "In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word lax; which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish, leg and derecho: in German, Oesetz and Recht. The English is at present destitute of this advantage.
"In the Anglo-Saxon, besides lage, and several other words for the concrete sense, there was the word right, answering to the German Ri-cht, for the abstract; as may be seen in the compound fole-right and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage."
But the terms Recht, diritto, droit, &c., are also used, in jurisprudence proper, in the sense offacultas agendi, the sense of the English term a right; and this is a concrete sense as much as that of (,'esetz, legge, loi, &c. In English, the substantive word a right is used only in the sense of facultas agendi, while the words Recht, diritto, droit, Sec., signify, in their respective languages, not only this but also a rule which is right in the abstract, that is, the rule of natural equity: which may, or may not, be identified with lex—the positive law. Comp. Dig. Lib. I., tit 1, § 11: Paulus: libro XIV., ad Sabinum. Jus pluribus modis dicitur. Uno modo, quum id quod semper tequum ac bonum est, jus dicitur, utest jus naturale. But, in the jurisprudence of every nation, positive law is a jural rule, (leges juris); and the Recht and Gesetz, lot and droit, &c., are presumed to be identified. And see Austin: Prov. of .lurisp., p. 305, note, p. 308, note, in respect to this use of the words jus and Recht.
Jus—Publicum; Petvatum. 147
object or relations of persons on which a law operates. Hujus studii duaB sunt positiones, publicum et privatum. Publicum jus est, quod ad statum rei Romanse spectat, privatum, quod ad singulorum ntilitatem.1 Here publicum jus appears to be equivalent to what would now be called the public law of some one state, public municipal law, or constitutional law; or, if a more extended meaning is to be attributed to it, it may be taken to correspond with what the moderns denominate political law, or the science of political ethics, and that only with reference to the relations of a single state.' In the mind of the Roman lawgiver, indeed, quod ad statum rei Roman» spectat, comprehended the laws of the empire of the world, and, so far as compatible with the admission of supremacy in that single state or nation, the idea of international law in the modern sense.'
§ 151. The analysis of private law, which next follows, is founded upon the nature of its origin. Dicendum est igitur de jure privato, quod tripartitum est: collectum est enim ex naturalibus prseceptis, aut gentium, aut civilibus. From the immediate sequence of the definition of natural law as being that quod natura docuit, it may be taken to be identical with "natural precepts." But this natural law, as there defined, can hardly be considered a part of public or private law in the primary meaning of the word as a rule of action. The definition is only a recognition of a state of things independent of human action, or a law in the secondary sense; and includes not only the nature of man but of all animated existences. Jus naturale est quod natura omnia animalia docuit. Nam jus istud non humani generis proprium est, sed omnium animalium, quse in coelo, quae in terra, quse in mari nascuntur. Hinc descendit
1 Vinnius: Comment. Lugd. Batav. 1726, B. 1, tit 1, not. a Heinecc. "Quod ad statum Rom. etc. Quod a utilitate publicum est, non quod sola auctoritate; est enim base divisio a fine sumpta, non a causa efficients. Singulorum utilitatem. Quod privatim ad cujusque civis rem pertinet familiarem. Quanuuam et hoc per consequentium publico, et illud privatim, utile."
'Mackeldey's Compendium, p. 125, note by Kaufmann. Compare ante, § 25 and notes.
• Virgil: jEneid, B. VL 1. 85L
"Tu regere imperio populos, Romano, memento." Gravina; de Rom. Imp. § § 1. 2, and Gravina: Origines L. II. § 10. Huber. Conf. Leg., Lib. I., tit. 3; Lib. II. tit. 8. § 1. "In jure Romano non est mirnm nihil hac de re exstare, cum populi Komani per omnes orbis partes diffusum et eqnabili jure gnbcrnntum imperium conflictui diversarum legum non eeque potuerit esse subjectum." Wheaton: Int. L. p. 20.
148 JVB GENTIUM.
maris atque fceminse conjunctio, quam nos matrimonium appellamu8; hinc liberorum procreatio; hinc educatio; videmus etenim cetera quoque animalia istius juris peritia censeri.
§ 152. The distinction next drawn between jus civile and jus gentium, introduces a law of nations, as a source of the private law, in a sense more nearly corresponding with the modern idea attached to the terms law of nature and natural law, when employed in jurisprudence, and with 'universal law' as it was defined in the first and second chapters. Jus autem civile vel gentium ita dividitur; omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur. Nam quod quisque populus ipse sibi jus constituit, ipsius civitatis proprium est vocaturque jus civile, quasi jus proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos perseque custoditur, vocaturque jus gentium, quasi quo jure omnes gen- tes utantur. This law of nations, the offspring of naturalis ratio, is afterwards made to overrule the natural law, jus naturale, in the origin of slavery; though that natural law, if implied in 'natural precepts'—naturalibus prseceptis, is before made a source of private law—the jus privatum.1 The definition of jus
1 Mackeldey's Compendium, p. 126; Kaufmann's note. Savigny: Heutige Rdm. R. Vol. I. Appendix I. (Tr.) "The Roman jurists notice two divisions oflaw, founded upon the general nature of its origin. One is a division into two parts: viz., 1, Law as it existed for the Romans only, civile; 2, Law as existing for all nations, gentium or naturale. The other is a division into three parts: viz., 1., Law existing for the Romans only, civile; or 2, existing for all nations, gentium; or 3, existing both for all mankind and for the brute creation, naturale.
"I not only consider the first of these divisions the only correct one, but I also assert that it is even to be regarded as the ruling division among the Roman jurists, and that the other can only be regarded as an attempt at an extension of the subject which never received general recognition; nor ever had any influence in determining particular questions of law. The division into two parts is most carefully carried out by Gains, in several instances. He places this division at the introduction of his work without the recognition of a third part. Jus gentium is with him the older portion, as ancient as the human race. It arises from the naturalis ratio of all men; hence he elsewhere names it jus naturale; as in referring the natural acquisition of property by voluntary exchange, in one place to jus naturale, and in another to naturalis ratio. This division in two parts is found also with Modestin, Paulus, Marcian, Florentinus and Licinius Rufinus, — • « The division into three parts is most distinctly made by Ulpian. and after him by Tryphonius and Hermogcnian. It rests on the following theory. That there was a time wherein men knew only such relations to each other as were common to them and the brute creation; those of the sexes, generation, and education. Thereafter followed a second period of time, wherein states arose ; slavery, private property and obligations were introduced: and this in like manner among men wherever found. Lastly arose law in each state as peculiar to itself; partly by the modification of those general institutions by particular circumstances, partly by the addition of new institutions or rules. * * * On this particular point the Institutes of Justinian take a very inconsistent position. The text of Ulpian is first used, giving the tripartite division, and making it apply to the origin of slavery. Then the text of Gaius, Marcian or Florentinus is either followed in terms, or plainly referred to. One passage is particularly remarkable, where the words of Gaius are used, but with the express addition that jus naturale is the same as jus gentium, and that this had already before been so stated; § 11, I. rfe die. rer. (2, 1.) quarundam enim rerum dominium nanciscimur jure naturali; quod, sicut diximus, appellatur jus gentium; quarundam jure civili." Compare on this subject, Austin, Prov. Jurisp. 188-190.
JUS PUBLICUM. 149
civile, in this place, is derived from its origin, or the source to which in judicial apprehension it is referred for its existence, that is, the will of some one state or nation, and it is therefore also here called 'its own,'—proprium. After this definition the Roman people is said to use not only its own law, proprium, but also the principles of this law of nations, as the dictates of natural reason, without further mention of 'natural precepts'— Et populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur. And in most instances wherein the term jus civile is used in the Roman law it means all that the Roman state uses, utitur, or enforces as a rule of action; that is, it includes both the jus civile, or proprium, and the jus gentium as here defined; and is equivalent to the term 'municipal law' as employed by Blackstone, or to the term 'national law' according to Bentham's terminology.
§ 153. The jus publicum, whether exclusively relating to internal, or to external relations also, must have had the same origin in the will of the state, or in the rules of' natural reason,' being also a part of the law used by the Roman people. International law, so far as it existed, and whether included under that here called public law, or not, is implied to rest also on the law of nations or principles commonly received among all mankind, by the description of the origin of slavery, which is justified on those principles while it is ascribed to wars, which are necessarily international, and are also justified by the same 'law of nations.' Jus autem gentium omni humano generi commune est. Nam usu exigente et humanis necessitatibus gentes humanse qusedam (jura) sibi constituerunt; bella etenim orta sunt et captivitates secutse sunt et servitutes; by which are meant, not private wars or piracies," but those appeals to force
1 Iluberus, de Jure Civitatis, lib. 2. c. 3. § 8. "Quod si bellum caret solemnibul juris gentium requisitis, non sunt capti jure servi, proinde nee ejusmodi tacita oritur obligatio; ut in his qui piratico aut latrocinio barbarorum capiuntur."
150 OBIOIN OF SLAVERY.
which the natural reason of mankind has hitherto continued to justify, as remedies between sovereign states. While slavery is thus justified as being accordant with natural reason, and therefore with natural law, so far as it can be recognized in jurisprudence, the freedom of mankind is asserted under the natural law, in the sense of the statement of a condition of things anterior to the authority of nations or of society: in which sense of the words all men would be taken to be naturally free from any positive law, that is, from all those rules of action which are enforced by society, or by states. The sentence last quoted from the Institutes is thus continued. Bella etenim orta sunt et captivitates secutse et servitutes, quee sunt naturali juri contrarise. Jure enim naturali omnes homines ab initio liberi nascebantur; and in Title 3, §§ 2, 3, 4,—Servitus autem est constitute juris gentium, qua quis dominio alieno contra naturam subjicitur. Servi autem ex eo appellati sunt, quod Imperatores captivos vendere ac per hoc servare nee occidere solent; qui etiam mancipia dicti sunt, eo quod ab hostibus manu capiuntur. * * * fiunt [servi] jure gentium, id est captivitate. And in Title 5, § 1, on manumission, it is said, Qure res a jure gentium originem sumsit; utpote quum jure naturali omnes liberi nascerentur; nee nota esset manumissio, quum servitus esset incognita. Sed posteaquam jure gentium servitus invasit, secutum est beneficium manumissionis. Seeming to mean, that though in a primseval state, or a state of nature as opposed to a state of society, or as originally created, men must be considered equally free, yet, in consequence of their natural passions and infirmities, a necessary condition of things has arisen in the social state, a usus exigens et humana necessitas, from which natural reason justifies slavery.1 This view of the origin of slavery the Romans held in common with all the nations of
T In order to reconcile the language of the Institutes, some civilians distinguish a jus gentium prirrurrum and a jus gentium tecondarium. v. Vinnius: Comm. Lib I. Tit 2, 8, on this title of the Institutes. Merlin: Repertoire de Jurisprudence, Tom. V., p. 291, speaks of le droit primitif des gens, and le droit des gens secondairr. And St. Thomas Aquinas makes a similar discrimination of a secondary law of nature identical with the law of nationa; as quoted in Bishop England's Letter II., giving the earlier Christian authorities that slavery is a legitimate consequence of sin.