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THE LAW

OF

FREEDOM AND BONDAGE

CHAPTER L

LAW DEFINED AND DIVIDED ITS OBJECT, OBIGIN, EFFECT,

AND EXTENT.

§ 1. The word law has, in common use, two leading significations; one, which is generally considered the primary sense —that of a rule of action, prescribed by a superior to an inferior; in the idea of which the possibility of action contrary to the rule is implied: the other—a meaning sometimes considered secondary to that first given, by a metaphorical use of the word—that of a mode of existence, or of action, excluding the idea of the possibility of action contrary to that mode ;—a relation necessary in the nature of the thing existing or acting: whether the co-existence of a superior author or cause of that relation be supposed or not.1

§ 2. Every being, existing under conditions over which it has no control, is subject to law in the secondary sense;—therefore, called the law of its nature. The nature of man, or the conditions of his existence, are to him a law in this sense—the law of nature; and, being by this law capable of choice and action, he may also be subject to law in the primary sense.'

1 Brando's Diet, Law. Blackst. Com., Introd., sec. 2, note by Christian. Austin: Province of Jurisp., pp. 19, 130, 184. Montesq.: Spirit of L., eh. L; and De Tracy's Comment. Reddie's Inquiries Elementary &c, pp. 4,16, 17.

'The primary and secondary meaning! of the term law must not be confounded with a primary and secondary law; whether so called in reference to order of time or of authority. Conditions of things are necessarily presupposed in the enunciation of a rule of action, and in this connection the former may be called the primary and the latter the secondary law. Some elementary writers speak of a primary and secondary law of nature. Their primary law being a condition of things—a law in the secondary sense: e. g. Bowyer: Univ. Pub. Law, p. 20. Ayliffe's Pandects, pp. 5, 6. Wood's Civil Law, p. 92. Domat: Loix Civ. Traite des Loix, ch. i., § 3.

2 LAW OF NATURE.

The idea of law in the primary sense implies the relation of superior and inferior; and the elementary principle in the science of law, in this sense of the word law, is the existence of the legislator anterior to the law. When the word law is applied to rules of action for man, the existence of such a legislator, as to man, must be taken for a fact, or relation, independent of the rule itself; or as being a principle of the law of nature, in the secondary sense of the word law.1 .

§ 3. In the various views of the conditions of man's existence—that is, of the law of his nature (law in the secondary sense), which have been advanced by authors who have professed to treat of jurisprudence, or the science of law, there have been two theories as to the existence of this legislator, or the source of law in the primary sense. According to some authors, the first principle of the science of law is, that man exists in society organized into political states, and that the state is the highest source of law as a rule of action* This principle being assumed to be a law of nature, in the secondary sense of the term, and the law of nature, in this sense, being considered as the only law of nature which can, in any system of jurisprudence, be regarded as having an existence independent of the state.'

According to others, there is a law in the primary sense, anterior to the legislation of the state; by which actions are

1 Keddie's Inq. Elem. &c, p. 16-19.

* In illustrating the assertion of this doctrine, writers on jurisprudence usually cite Cameades, apud Lactantium, Lib. v., c. 15; and Aristippus and Pyrrho, apud Diog. Laert., Lib. u., c. 8: see Selden, De J. Nat. et Gen. juxta Disc. Eb., ch. 3; Rutherf., B. ii, c. 1; Pufend., B. ii., c. 3; Grot., B. et P. Prolog. 5. But these are only early dogmatisms on one side of a never-ending ethical controversy; of which more systematic assertions might be found nearer our own day. It is not, in fact, possible to cite any system of jurisprudence or any legislative or juridical authority, ancient or modern, heathen or Christian, which denies the pre-existence of natural justice—the jural character of every rule which is a rule of law; unless piratical communities and robber feudal barons can be called juridical authority when denying the existence of any law: compare Lieber: Pol. Ethics, vol. L, 231.

1 Spinoza: Ethices, Pars iv., prop. 37, schoL 2: Tract Politici, cap. ii.: Tract Theologico-Polit, cap. xvi. Hobbes is commonly misrepresented as having denied the existence of natural law otherwise than in this sense.

JURISPRUDENCE DEFINED. 3

enjoined, allowed or prohibited, independently of the rule proceeding from the state, and under which, as a law of nature, and a law in the primary sense also, the state is to be considered as existing; which law is to be recognized in jurisprudence as constantly binding on mankind.1

§ 4. The questions of the existence of natural law,—in the primary sense of the word law, of the nature of its injunctions, and of the limits of the power of the state as a source of rules of action for mankind, are questions regarding the nature of man, or of the law of his nature, in the secondary sense of the term law: they are questions of ethics,—the science of his nature as a being capable of choice and action in reference to a rule which it is possible for him to disobey; whether they are determined by the precepts of a religious creed, taken to be the revelation of a divine will, or by the dictates of human reason. Whether they also belong to jurisprudence, or not, is merely a question of definition: that is, depends on the meaning of law, and of jurisprudence as the science of law.'

§ 5. A law in the secondary sense is spoken of as something which exists absolutely; which necessarily both exists and operates; which is necessarily enforced, if it exists at all; such a law being a state of things. But a law in the primary sense— a rule of action, may be supposed to exist without being enforced; or without operating except in creating a moral obligation: because a possibility of action contrary to the rule is implied in the idea of a law in this sense. A law of this kind may therefore be recognized either as a law merely existing, or as a law operating or being enforced.

Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced

1 Lieber: Pol. Ethies, B. I., § 30. Rutherford, B. ii., o. 2. Mackintosh: Prog. Eth. Phil., Sect iv. v.: Grotius: B. et P. Prolegom., §§ 6, 7, 8,16, and notes. Vattel: c . ii., § 1. Aristot.: Rhet., Lib. i., cap. 13 et 15, and various other ancient authorities cited by Selden, De J. Nat. &c., Ebr. Lib. i., ch. vi. Reddie's Inquiries etc., p. 19; also, ch. ii., and the citations.

A very recent comparison of the best authors on this point in Bowyer on Universal Public Law, ch. ii., iii., iv., vii., Vol. 84, of Philad. Law Library.

9 Comp., Doctor and Student, eh. i., ii.

In connection with the subject of this chapter, there will be frequent occasion to recall the maxim of Iavolenus, Dig., Lib. 1., Tit. 17, § 202. Omnia deunitio in jure civili periculosa est, parum est enim ut non subverti possit.

4 SUBJECT OF JURISPRUDENCE.

in or by the will of society or the state. The science of what rule ought to be made operative by the will of the state is a different thing; it is a science of rules regarded only as existing, whether operative in civil society—that is, enforced—or not.1

A rule made operative by the authority of society, or of the state, is a rule identified with the expressed will of society or of the state. The will of the state, indicated in some form of expression, is the law,' the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the will of the state so indicated. What the state wills is the conterminous measure of law; no pre-existing rule is the measure of that will.'

§ 6. But a law in the primary sense must be founded on a recognition of the nature of the things which it affects:—that is, of a natural law in the secondary sense of the word: for a rule founded on a contradiction of the nature of things is a rule impossible to be executed, or cannot subsist as a rule.4 There fore, all laws made for man must recognize some conditions as the conditions of his existence; and hence a recognition of his moral nature, or of a necessity in his nature to regard actions>aa

1 Domat includes natural law, derived by a priori reasoning, in the law—the subject of jurisprudence; and speaks of some rules as being evident without reasoning, and of others which require reasoning to make them evident Domat: Civil Law. Treatise on Laws, ch. ii., §1—37; and see Bowyer, Univ. Pub. Law, p. 103. In this system, the mind of the individual jurist determines the law; it is his subjective apprehension of a rule of action: and only that rule which, in his judgment, the state ought to enforce. Chanc. D'Aguesseau approves of Domat's system in this respect: see CEuvres, Tom. I., p. 645-6. Mr. Reddie, Inquiries El. Ac., p. 48, says of Kant's Metaphysische Anfangs Griinde der Rechtelehre, and Fichte's Gruudlage des Naturrechts, that " they established in Germany the complete recognition of the distinction between ethics and law, or jurisprudence, between the legality and the morality of human actions." But Mr. Reddie sometimes speaks of jurisprudence as if it comprehended the science of what ought to be law; see Inquiries El. Ac., pp. 24, 25.

• Savigny: Heut Rom. Recht, § 7. Tr.: "With reference to this quality of the law, by which it has an actual determined existence in reference to any given state of things in which it may be appealed to, we call it positive law."

* Molloy de Jure Marit. B. iii., c . 9, § 1, 2. Pufendorf, B. i., c . 6, § 1. Co. Lit. fo. 97, b. Lieber: Pol. Eth., voL I. p. 98, 249. "Law is the direct or indirect, explicit or implied, real or supposed, positive or acquiesced in expression of the will of human society represented in the state; or it is the public will of a part of human society constituted into a state." Compare Encyc. Am., vol. vii., Append. Law, Ac., by Judge Story.

* Dig. Lib. 1., Tit. 17, § 186. Ques rerum natura prohibentur nulla lege confirmata sunt. Co. Lit., 92 a. "Lex spectat naturse ordinem, the law respecteth the order and course of nature. Lex non cogit ad impossibilia. The law compels no man to impossible things. The argument ab imposribili is forcible in law. Impossible est quod naturse rei repugnat."

[graphic]

LAW—A BULK OF RIGHT. 5

being right or wrong, is necessarily made, as the recognition of a fact, in the act of prescribing a law for him founded on the idea of distinguishing between actions as right or wrong, or on the existence of a moral obligation in the rule; that is, an obligation founded on his nature, and also resulting from a law in the primary sense.1 Now, since, in point of fact, all laws, enjoined by society or the state, have been founded on this idea, the law prescribed by the state recognizes the existence of a natural law in the primary sense of the word law*

§ 7. But since the state makes this acknowledgment of natural law by classifying or distinguishing certain actions as actions to be done or not to be done, as permissible or not permissible, it so far interprets this law of nature by asserting it

1 Whewell: Elements of Morality, including Polity, B. i., c. 4, 90. "Rights are not law only nor justice only, (meaning bylaw the law of society, and by justice that which is right,) they are both Law and Justice; Law, because Justice; Justice expressed in Law;" and see the same, §§ 105, 106, 107. Lieber: Pol. Eth., B. ii., § 31. "The state, I said, is founded on the relations of right; it is a jural society, as a church is a religious society, an insurance company a financial association; the idea of the just, and the action founded upon the idea called justice, is the broad foundation and great object of the state." The same, §§ 33, 8">: "The state being a jural society, and rights being imaginable between moral beings only, it follows that the state has likewise a moral character, and must maintain it." The word jural is also employed by Whewell, B. i., c. 4, 90: "By the adjective jural we shall denote that which has reference to the doctrine of rights and obligations; as by the adjective moral we denote that which has reference to the doctrine of duties." And therefore, the state, in establishing coercive rules of action, acts juridically. The term juridical is commonly used as if synonymous with judicial. A tribunal in acting judicially, necessarily, also acts juridically: that is, declares what is justice or right. But the state, when it promulgates laws, promulgates them as rules of right. The word juridical will herein be employed to designate the declaration of law, whether made by the legislative or the judicial function.

The term juridical is sometimes used to designate the province of the private jurist: the proper word for which is juristical, (Ger. juristisch.) A society of jurists in England have called themselves "the juridical society." In the French version of Falcks Juristische Encyclopedie, translated Ency. Juridique, vii., note, it is said: "nous avons ordinairement traduit l'adjectif ailemtmi juristisch far juridique, quoiquele motfrancais signifie, dans l'usage plutot ce qui se rapporte a \a.juridiction que ce qui se rapporte au droit. Nous aurions pu souvent le remplacer par legal, mais comme il est necessaire, surtout dans un expose de principes, de ne pas confondre le droit et la loi, nous avons evite d'employer l'un pour l'autre, juridique (repondant a juristisch, reelttlich) et legal (repondant a geseUlich.)"

'Reddie's Inquiries Elem. &c, p. 9, 58. There are noble passages in the writings of Cicero, and others, which are frequently cited by authors who base jurisprudence upon natural law; (e. g. Cic. De Rep. iii, 22—the passage given by Lactantius, Inst. Tl,8; Demosthenes Or. contra Aristogit. i.) Whether they have been used to the purpose depends entirely on the definitions assumed for these words. Their force differs essentially as they are used either in a legislative or a judicial point of view.

'Hobbes: Leviathan, De Civitate, c. xxvi. De legibus civilibus. "Legem igitur civilem sic definio: lex civilis unicuique civi est regula qua civitas verbo scripto, vel alio quocunque voluntatis signo idoi.eo, ad distinctionein boni et mali uti imperat."

Ency. Am., vol. vii., p. 581. Appendix by Judge Story : "By a law we understand

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