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16 UNIVERSAL JUEISPBU-BENCE.
applies that reason to the unalterable conditions of human existence, thus recognizing the law of nature, in the primary and secondary senses of the word law, it may be anticipated that some principles or rules will be found to be the same in the law of many different states: and these rules, so found to obtain generally, may be distinguished from the rest of the law of any one state by their extent; that is, by their being generally recognized and enforced by the several possessors of the power of society. And though the whole law of each nation is judicially taken to be conformable to natural reason,l those principles, when thus known by their general extent, may be judicially considered founded on the necessary conditions of human existence, and therefore be judicially taken as having universal application in all countries, and under the sovereign authority of every nation.' They may be considered, in the jurisprudence of any one country, as natural principles; not only because recognized by the national law, but because founded on the general reasoning of men living in the social state.' They may, therefore, be considered the subject of a jurisprudence distinct from that of any one nation—a general, or universal jurisprudence; general, or universal, because historically known to prevail among all nations, or among the more powerful and enlightened.*
in the views and determination of all nations on the subject. That which is common in the determination of all nations respecting rights and obligations is called Jut Naturae, or Jut Gentium. That which is peculiar to the law of a particular state, or city, is called Jut Civile, or Jut Munieipale. We may distinguish these two kinds of Jus as Natural Jut and National Jut." Also, the same, B. vi., c. i., § 1139. 1 Ayliffe's Pandects, p. 6.
'De Tocqueville: Dem. in Am., voL ii., p. 84. "A general law—which bears the name of Justice—has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. * * * A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great and general law of Justice."
In Bowyer's Univ. Pub. Law, ch. iv., where jurisprudence is exhibited by the a priori method, following Domat, univertal jurisprudence is equivalent to political ethics. Duponceau on Jurisdiction, pp. 126,128, recommending the study of "general jurisprudence," which, he says, is part of the common law, and which he laments "has fallen too much into neglect," does not distinguish it from "universal justice "— "the eternal principles of right and wrong.''
• Aristot.: Rhet., L i., c. 18. 15. Reddie's Inq. Elem., &c., 85-87.
* Here universal jurisprudence is derived by reasoning a potteriori, according to Grotius' method; and, so derived, it has no necessary identity with that derived a priori, in the manner pursued by Domat, (see Loix civiles; Tr. des Loix, and the summary given by Bowyer, Univ. Pub. Law, p. 68,) and also by Pufendorf, and others,
LAW OF NATIONS. 17 § 20. The term law of nations, jus gentium, had been originally employed by the Roman jurists to designate legal principles having this general extent, before it became applied to that
as Manning: a. Comm. Writers on international law, or the law of nations, in the same sense, may be divided into two classes: those who derive it a priori are, however, properly speaking, writers on ethics; those only who derive it a posteriori are writers on law. Law determined in the manner pursued by the last is derived by the inductive method, or empirically, in the language of the German writers. (For a similar distinction among writers on political and religious systems, compare La Mennais: Essai sur l'lndifference &c., Tom. ii., p. 158. De Maistre: Soirees de St. Petersburg, Tom. i., p. 280.)
Bowyer's Comm on Mod. Civil Law, Lond., 1848, p. 26. "The Romans give the reason of the universality of what they call the law of nations in these words,—quod naturalis ratio inter omnes homines constituit. But the civilians of modern times have drawn their classification from the reason of the alleged universality of the law, and not from that universality itself, which, owing to the ignorance of some nations, does not in point of fact exist. That reason is, because the obligatory force of the law is pointed out by the mental faculties of man. This universally obligatory law (though not universally observed) is called natural law, and is thus defined by Grotius," &c., citing B. et P., Lib. i., c. L, § 10. i. Now Grotius clearly distinguishes in § 12, of the same chapter, between these two methods of ascertaining the law; and though he is the leading author following the inductive method, he still attributes its authority, when ascertained, to nature, or to the Creator, not to the will of political states. The question, what rules do the mental faculties of man declare to be obligatory? is solved by the history of man's exercise of his mental faculties, and not by the mental faculties of the individual jurist. Mr. Reddie adheres to what may be called the early Roman school, and insists that the modern civilians have erred so far as they have derived their jus gentium a priori. Showing, too, that, in fact, the principles of the law of nature, as unfolded by Pufendorf, Cooceius, Wolf, and others, are little else than propositions taken from the Roman law; stripped of all that identified them with the national system of the Romans. (Reddie's Inq. Elem. Sec., 74-76, 81.) Gravina declares, De Ortu &c., L. i., Princip.: "Quoniam nihil aliud est jus civile, nisi naturalis ad Romanx Reipubliciu institutionem relata, Romanisque moribus et Uteris explicata ratio," etc.
Bentham: Moral and Leg., ch. xvii. "Of what stamp are the works of Grotius, Pufendorf, and Burlamaqui? Are they political or ethical, historical or judicial, expository or censorial? Sometimes one thing, sometimes another; they seem hardly to have settled the matter with themselves. A defect this, to which all books must almost unavoidably be liable which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be." And the author here refers to ch. it, 14, of the same work, and his note to the passage, which is herein before cited, p. 6; and compare Morhofs Polyhistor, vol. iii., Lib. vi, c. 1. De Jurisprudentus universalis Scriptoribus.
Grotius is not, indeed, altogether constant to the method indicated in the passage referred to. Grotius: B. et P., ch. i., 12. "Now that any thing is, or is not the law of nature, is generally proved either a priori,—that is, by argument drawn from the very nature of the thing; or a posteriori,—that is, by reasons taken from something external. The former way of reasoning is more subtile and abstracted; the latter, more popular. The proof by the former is by showing the necessary fitness or unfitness of any thing with a reasonable and sociable nature. But the proof by the latter is, when we cannot with absolute certainty, yet with very great probability, conclude that to be the law of nature which is generally believed to be so by all, or, at least, the most civilized nations. For a universal effect requires a universal cause; and there cannot well be any other cause assigned for this general opinion than what is called common sense."
18 UNIVERSAL LAW.
law which is herein before called the international law, and which had not with the Romans any recognized existence, as distinct from their own public law, jus publicum Romanum. These principles will always constitute a part of the international law, the rules of which are in a great degree founded on their existence, as will be shown in the next chapter. But they exist independently of it, and are equally a constituent part of municipal (national) law.1 There will always be a necessity for their distinct recognition, and for some appropriate term by which to distinguish them. The term universal law has been employed by late English writers to designate these principles, corresponding to the law of nations, jm gentium-, of the Roman jurists.'
§ 21. Law, in being a rule of action, necessarily regards both agents and objects of action; and thus in its inception constitutes the first distinction known to the law, in determining who or what are agents, and who or what are the objects of
1 D'Agnesseau: GSurres, Tom. i., p. 444. Duponeeau on Jurisdiction, pp. 18, 110, 126, 128. Compare, also, Bacon: De Augmentis, Lib. viii, Dejnstitia universali, seu de fontibus juris. Selden: De J. nat. et Gen. ore., Lib. i., c. iii., vi.
* Bentham uses the term universal to describe those principles which are commonly received among all nations. See Morals and Legislat., ch. xviii., 24. "In the first place, in point of extent, what is delivered concerning the laws in question may have reference either to the laws of such or such a nation, or nations, in particular, or to the laws of all nations whatsoever; in the first case, the book may be said to relate to local, in the other to universal jurisprudence."
"Ealrn theoda riht, (the right of all nations,) jus gentium." Bosworth's Lexicon Anglo-Sax., verb, Rihl.
There is no classic Greek term answering to the Latin jus. vtuos corresponds to lex. The distinction between a jus iiiov, proprinm, id est populis vel civitatibus singulis civile, and a jus icotvhr, commune, is remarked by Aristotle, Rhet, Lib. i., c . 13, 15, where he also designates the latter as being that which is xari <pi<riv, secundum naturam; but recognizing it to be so from the fact that it is universally received. Comp. Thuc., B. iii., 59, Ta mitra ray "EXA^rtoy vi*uua. The Byzantine jurists, who, about A. r>. 876, prepared the Greek version of the Corpus Juris, known as the Basilica, (v. Smith: Diet. Antiq. Butler's Hone Juridica, app. iv.,) used the term vt[utuov iSi/ucbr, and also coined from juris-gentium the word 'loupisytvrtos. See Selden: De J. Nat. et Gent. &c., Lib. i., c. vi.
Brougham: Polit Philos., Prelim. Disc. "It is a very common error to confound with this branch of the law" [referring to international lair, here denominated by Lord Brougham "the law of nations,"] many of those general principles of jurisprudence common to all nations, and to term these a portion of the law of nations." With equal justice it may be said the error lies in calling international law by the name "law of nations;" or rather, it lies in calling by one name two distinct sets of legal principles, viz., principles known, or denominated from their general recognition, or application by nations, and those rules which are applied as a law between nations; which last are derived both from the first—the principles universally recognized—and from the agreements and customs of particular states.
PERS0N8 AND THINGS. 19
action. Agents, under a rule of action for moral beings, being necessarily such as are considered by the author of the rule capable of choice and action; or persons, to be distinguished from things: the latter being only the objects of action, and incapable of personality—that is, of capacity for choice and action.
The action of persons may be in direct relation to other persons as the objects of action; and even in relation to things, as such objects, is of legal significance only in respect to other persons. In other words, all legal relations are relations of persons to persons—directly, or through things.1
§ 22. A legal relation between persons consists in a privilege and obligation as mutually essential. This privilege and obligation exist in each of these classes of relations, constituting rights and duties as correlative, or as necessary co-efficients of each other."
When rights and duties are classified, they must always be taken as rights and duties of persons, since it is only by the prior recognition of persons that relations, privileges, and obligation can be said to exist. Eights and duties cannot be separately classified in any system of jurisprudence, because, being correlative, they cannot be separately described; the definition of one is involved in the definition of the other.
§ 23. The prominent distinction between rights (with their correlative duties) is that of being rights in relations wherein persons are the objects of action, and rights in relations wherein things are the objects of action. But since persons and things are associated in every action of natural persons, it is impossible to make an accurate classification on this distinction.' Rights
1 Alliens: Naturrecht, p. 83. Tr. "A being endowed with solf-oonsciousness, reason, and freedom [power of choice] is called a person, or has personality."
"The law relates to persons as its groundwork and aim, (Zweck.) That is, it has an essentially personal character. The distinction which is ordinarily made between the law of persons and the law of things, as of two co-ordinate parts of the law, is therefore inaccurate. All law is throughout a law of persons."
"The law necessarily relates to things also, inasmuch as these compose the physical conditions of human development. But the law relative to things constitutes only a subordinate division of the law relating to persons."
* Jus et obligatio sunt correlata. Thibaut: Syst Pand. Kechts, Elementary Part, § 1. ( Lindley's 'fraiisl. in vol. 86 of Law Library.)
* Compare Austin: Prov. of Jurisp., Appendix, xviii.—xxv. Wesenbecii Comm. ad Pandect, Lib. i., tit. v., num. 1, n. "Omne jus quo utimur, vel ad personas pertinet quibus jus redditur, vel ad res de quibus jus redditur, vel ad actiones sive jndicia per qute jus redditur." Here, in the first instance, jut signifies the jural rule; afterwards, it has the sense of a right, or privilege.
20 BIGHTs THEIR SUBJECT AND OBJECT.
considered without reference to specific things as the objects of action may be called rights of persons, and distinguished from rights considered with reference to specific things, or classes of things, as the objects of action: which may in a certain sense be called rights of things; meaning, however, rather the relations of things to persons having rights and duties in respect to those things.1
§ 24. A right may be considered as to its subject or its object. The subject of a right is the person in relation to whom it exists; its object is the matter to which it relates.'
Persons, both as agents and objects of action, are the subjects of rights. Things can only be the objects of rights, as well as the objects of action.
As, from the nature of things, they can be regarded in a rule of action only so far as they are in the power and possession of agents, or persons, property is an essential attribute of the nature of things. *
See Reddie's Inquiries Elem. &c., pp. 146—159, for the distribution or arrangement of private law made by Gains, Grotius, Bodinus, Bacon, Leibnitz, Coccieus, Pothier, and Millar of Glasgow.
'Reddie's Inq. Elem. dec., p. 171. "Now rights and obligations are manifestly the attributes of persons, not of things. And to divide rights, like Judge Blackstone, into the rights of persons and the rights of things, if by the latter words are meant rights, not over, in or to, but belonging to, or inherent, and vested in things, we have seen, either evinces inaccuracy of thought, or is, at best, misapplication of language. Again, rights and obligations are not merely the attributes of persons singly; they pre-suppose and exist only in reference to other persons. A single man existing on the surface of this earth would have certain physical powers over external things, but no legal rights."
"But although rights and obligations are in reality, and correctly, the relations of individual persons, to other individuals, they are plainly correlative terms.1'
Hole, whom Blackstone followed in this distribution, used also the Latin terms jura rerum and jura personanm. The word jus signifies law, as well as a right—the effect of law. Jura rerum, in the sense of the law relating to things, would have a meaning. Compare 1 Starke's Ev., p. 1, n. b. Austin: Prov. of J., append, six.
* In the languages of which the Latin is the principal basis, (the Romance languages,) subject (e. g. tujet, Fr.) is commonly used to designate that which is here called the object of a right. Mackeldey's Civil Law, Comp. Introd., § 14. "In connection with every right, we find a subject and an object. The subject of the right is the person on whom the right is conferred; the object of a right is the matter to which it relates." The German writers generally, when employing the words as German words, use them in the manner here followed in the text. See Hugo: Eucycl., p. 11. Lindley's Translation of Thibant, append, ii.
3 Compare on these sections, Long's Disc., p. 109—115. Coode on Legislative Expression, p. 9.