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Jurisprudence

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JURISPRUDENCE (Lat. jurisprudentia, knowledge of law, from jus, right, and prudentia, from providere, to foresee), the general term for " the formal science of positive law " (T. E.

Holland); see LAW. The essential principles involved are discussed below and in Jurisprudence, Comparative; the details of particular laws or sorts of law (Contract, &c.) and of individual national systems of law (English Law, &c.) being dealt with in separate articles.

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 that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed. 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 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 or comparative jurisprudence. In its ideal condition it would require an accurate record of the history of all legal systems as its material. 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, 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.

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 (I) 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 possible 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 seem 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." Austin never fails to stigmatize the use of " natural laws " in the sense of scientific facts as improper, or as metaphorical.

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: (r) 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. Austin's 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.g. 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 1 This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all.

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 properties. 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 political 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 in which it might be difficult to say whether a given society is political and independent or not. Several of 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 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.

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 " of 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 stumblingblock 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 - /ex, 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.

Frederic Harrison (Fortnightly Review, vols. xxx., xxxi.) was 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 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 any one 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 textbook or a statute is 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 later legislation. An English 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) was an undeniable command addressed to the clergy, and imposed 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 reflections 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 " 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 Indian 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 Rivers, 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 Maine 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 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 Maine 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." Maine, 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. Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And forma' legislation, as he elsewhere shows, 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 ? 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. Maine 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.

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 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 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 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 a good 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. 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. T. E. 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 the opinion or the force of society." 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 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 other, and against no other persons. The jus in rem is the badge of property; the jus is a mere personal claim.

1 In English speech another ambiguity is happily wanting which in many languages besets the phrase expressing " a right." The Latin " jus." the German " Recht," the Italian " diritto," and the French " droit " express, not only a right, but also law in the abstract. To indicate the distinction between " law " and " a right " the Germans are therefore obliged to resort to such phrases as " objectives " and " subjectives Recht," meaning by the former law in the abstract, and by the latter a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman law between the " jus quod ad res " and the " jus quod ad personas attinet," devotes the first two volumes of his Commentaries to the " Rights of Persons and the Rights of Things." See Holland's Elements of Jurisprudence, 10th ed., 78 seq.

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, &c., 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 who 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.

E. Holland disapproves of the prominence given by Austin to this distinction, instead of that between public and private law. This, according to 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, holding 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 (I) 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.

There is much to be said for Frederic Harrison's view (first expressed in the 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. As an example of the practical application of a scientific system of classification to a complete body of law, we may point to W. A. Hunter's elaborate Exposition of Roman Law (1876).

It is impossible to present the conclusions of historical jurisprudence in anything like the same shape as those which we have been discussing. Under the heading Jurisprudence, Comparative, an account will be found of the method and results of what is practically a new science. The inquiry is in that stage which is indicated in one way by describing it as a philosophy. It resembles, and is indeed only part of, the study which is described as the philosophy of history. Its chief interest 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 xv. 19 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 implied 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 noted 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 positio. 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 Inheritance Act 1833, 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." It has been suggested 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. Backstone tried not merely to express but to illustrate legal rules, and he had a keen sense of the value of historical illustration


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Bibliography Information
Chisholm, Hugh, General Editor. Entry for 'Jurisprudence'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/bri/j/jurisprudence.html. 1910.

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