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Cornell University Library 
 K 230.H35O8 
 
 Outlines of the science of jurisprudence 
 
 3 1924 017 167 333 
 
Cornell University 
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 The original of tliis bool< is in 
 tine Cornell University Library. 
 
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OUTLINES 
 
 Off 
 
 THE SCIENCE OF JURISPRUDENCE. 
 

 PBIKTED BY MORRISON AND GIBE, 
 FOR 
 
 T. & T. CLARK, LAW PUBLISHERS, EDINBURGH. 
 
 GLASGOW, . . . d. SMITH AND SON. 
 
 LONDON, . STEVENS AND SONS. 
 
 ,, . . .... STEVENS AND HAYNES. 
 
 ,. . . . . . HAMILTON, ADAMS, AND CO. 
 
 Lt>j '0 
 
OUTLIJS^ES 
 
 OP 
 
 THE SCIENCE OF JUEISPRUDENCE. 
 
 AN INTBODUGTION TO THE SYSTEMATIC 
 STUDY OF LAW. 
 
 SCtansIateti anti ©itteb from tie Snttstic CEncsclopslitae 
 
 OF 
 
 PUOHTA, FEIEDLANDEE, FALCK, and AHEENS, 
 
 W. HAS TIE, M.A., 
 
 TRANSLATOR OF * KANT'S PHILOSOPHY OF LAW ; ' 
 
 'the PHILOSOPHY OP ART,' EY HEGEL AND C. L. MICH EL ET J 
 
 ptilCjER'S ' CHRISTIAN PHILOSOPHY OF RELIGION,' ETC. 
 
 EDINBUEGH : 
 
 T. & T. CLAEK, 38 GEOEGE STEEET. 
 
 1887. 
 
' Jui'isprudentia est divinaram atque humanarum rerum 
 notitia,'justi atque injusti soientia.' — UlpiAN. 
 
 'Ex intima hominis natura haurienda est juris disciplina.' — 
 
 CiCBEO. 
 
 'Non tamen dubito quiu praecepta qusedam . . certiora 
 tradi possint, si quis . . . certam rationem ineat ; et alia cum 
 a,liis comparans, alia ex aliis neotens provehatur altius.' — Bobin. 
 
 ' At ,.' scieutiam juris et praoticam, auxiliaribus libris ne 
 nudanto, sed potius instruunto.' — Bacon. 
 
 ' Sed tutissimum Mnemonicse genus est Metbodus soUda et 
 accurata. ' — Lbibkiz. 
 
 ' It may be asserted, without injustice to Bentbam or to 
 Austin, that works upon legal system by English writers have 
 hitherto been singularly unsystematic. ' — Professor Holland. 
 
3^11 ^emotfam, 
 A. A. HASTI E S.S.C. 
 
 OBIIT NONIS JAN DAK. MDCCCLXXXVII. 
 
 Quia desiderio sit pudor aut modus 
 Tam cari capitis 1 
 
 We men, who in our mom of youth defied 
 
 The elements, must vanish ;— be it so ! 
 
 Enough, if something from our hands have power 
 
 To live and act and serve the future hour ; 
 
 And if, as toward the silent land we go. 
 
 Through Love, through Hope, and Faith's transcendent 
 
 dower, 
 "We feel that we are greater than we know. 
 
TRANSLATOR'S PREFACE. 
 
 ' The prospects of the Science of Jurisprudence, especially 
 in England, will depend largely upon a greater familiarity 
 than has hitherto been encouraged in Legal Education, with 
 the vast and invaluable Juridical Literature of Germany. 
 It happens, indeed, that in no other department of 
 Knowledge is it so hard to apprehend the best Concep- 
 tions hitherto attained, without a familiar acquaintance 
 with German Philosophical language, as in Jurisprudence. 
 Modern Jurisprudence is emphatically a German creation. 
 Kant, Hegel, Hugo, Savigny, Thibaut, Falcb, and their 
 laborious and not unworthy successors, have stamped 
 their Personality, their ^Nomenclature, their Ethical tone, 
 their Methods of Philosophical analysis, far too inefface- 
 ably upon the Science of Jurisprudence to be only read at 
 second hand by any Student who would penetrate to the 
 profoundest depths of that Science.' 
 
 These words of Professor Sheldon Amos,^ one of the 
 most loyal and learned representatives of the contemporary 
 School of English Jurisprudence, might of themselves 
 suffice to justify and explain the purpose and purport of 
 
 ^ A Systematic View of the Science of Jurisprudence, by Sheldon Amos, 
 M.A., of the Inner Temple, Barrister-at-Law, Proffessor of Jurisprudence, 
 University College, London, etc. p. 505. 
 
viii translatoe's peeface. 
 
 the present work. It is an attempt to bring the best 
 available thought and experience of these Masters of the 
 Modern German Jurisprudence to bear upon the acknow- 
 ledged want of a more scientific and systematic discipline 
 in the study of Law in England. Its aim is to introduce 
 the Student to the fundamental conceptions and the 
 articulated structure of Jurisprudence in its latest scien- 
 tific development, so that he may build his subsequent 
 knowledge of positive Law upon the deepest and surest 
 foundations, and secure it by the strong support and the 
 harmonious co-operation of established principles. It 
 exhibits the habit of essential thinking and the formal 
 methods of investigation which have constituted the most 
 vital conditions and factors in the magnificent develop- 
 ment of Juristic Science in Germany during the present 
 Century, and which from their philosophical and scientific 
 nature readily admit of universal application and use. 
 It also indicates the means and appliances of Juristic 
 Study in detail, with a Baconian practicality and 
 sobriety that must dispel the illusion that great achieve- 
 ments in this sphere are due to the exceptionalities of 
 genius, and which show at the same time that here too, 
 as in the physical sciences, the success of discovery is the 
 crown of patient methodized industry and of the faithful 
 ministration of interpretative thought. It further sketches 
 the historical development of Jurisprudence as the onward 
 sweep of human thinking in this most cardinal department 
 of social effort and creation, and it points to the living 
 problems and possibihties that remain to quicken and 
 stimulate to even higher endeavour. And this is done 
 in the simplest form, by the hands of acknowledged 
 Masters who have sounded all the depths and shoals of 
 their science in the search for solid truth and fruitful 
 
TEANSLATOE S PEEFACE. IX 
 
 possession, and who have had their right to lead and 
 guide authenticated by the fidelity of their enthusiastic 
 scholars and the consequent deepening and enriching of 
 knowledge in every department of their Science, The 
 merits and claims of the contents of the following pages 
 might thus be safely rested upon the authority, reputation, 
 and success of the learned Authors whose modes of thought 
 and teaching they represent. 
 
 But it is their relation to the present condition and 
 requirements of Jurisprudence ia England that has 
 prompted and must justify the attempt to make these 
 German Outlines of the Science of Jurisprudence more 
 directly available for the English Student. The subject 
 of Legal Education has been one of the practical problems 
 in England during the last fifty years, and it is always 
 more and more engaging the thought of the most distin- 
 guished Jurists in our country, who are keenly alive to 
 the important bearings of this question, and are putting 
 forth their best efforts at present in dealing with it.^ 
 
 ■^ The question cannot be discussed in detail kere, but tlie wbole of this 
 work, and especially Parts III. and IV., may be considered from this point 
 of view. — Mr. R. Campbell, in the ' Introduction' to his Student's Edition 
 of Austin's Lectures on Jurisprudence, has given an interesting sketch of 
 the efforts made to improve the system of Legal Education in England 
 since Austin's advocacy of the subject in 1834. Reference may also be 
 made to the recent discussions of the question by Professor Pollock 
 (Essays in Jurisprudence and Ethics, I., 1882, and his Lectures on Oxford 
 Law Studies in the Law Quarterly Review, Vol. II., 1886), Professor A. 
 V. Dicey {Can English Law he taught in the Universities, 1883), Professor 
 E. C. Clark (in his Article on Jurisprudence, its use and its place in Legal 
 Education, Law Quarterly Review, Vol. I., 1886), Professor Holland (in 
 the Preface to his Elements of Jurisprudence), and Professor Sheldon Amos 
 (in his Systematic View of the Science of Jurisprudence, pp. 490-507). — 
 Dr. Grueber, in an interesting review of Dr. Von HoItzendorfTs Ency- 
 clopddie (a work referred to below at p. 276), has summed up the position 
 in the following vigorous and relevant terms : ' During the last thirty or 
 
X teanslatoe's peeface. 
 
 The question has naturally emerged in consequence of 
 the vast extension of the knowledge of Legal Systems, 
 the recent application of the historical and comparative 
 method to the study of Law, the inilow of more philoso- 
 phical and scientific conceptions into contemporary juri- 
 dical literature, the necessity of realizing the essential and 
 organic connection of Jurisprudence with the whole domain 
 of social and political science, and the consequent demand 
 for a practical elevation of the Legal Profession in accordance 
 with its new ideals and responsibilities. The present work 
 may be regarded generally as an elementary contribution 
 to this desideratum of a more scientific Legal Education, 
 based upon earnest conviction of the essential relation of 
 Theory to Practice, and dealing with the existing want at 
 that initial and vital stage in which the conditions of all 
 real progTess and attainment are cardinally determined. 
 
 forty years a very strong movement has taken place in this country in 
 favour of the promotion of systematic legal studies. English people want 
 to attain a comprehensive view of their own law, but they find it scattered 
 ahout in thousands of Acts of Parliament and in endless volumes of Laws 
 Reports, and thus a knowledge of law is necessarily limited to those who 
 make it their special study and profession. This state of things is not 
 better than it was in ancient Eome, where law was a mystery, the know- 
 ledge of which was confiaed to the Patrician priesthood. We may say it is 
 still worse, for even English Lawyers do not know the principles of the 
 wliole sphere of law, beiag in want of the means to get a comprehensive 
 view of it.' (Law Quarterly Review, Vol. I. p. 62.) — Of the discussions 
 of the subject in German, reference may specially be made to Bluntschli's 
 Die Tieuem Rechtsschulen der deutschen Juristen. Zweite, mit Reformvor- 
 schlagen erweiterte Anfiage, 1862. — The unsatisfactory condition of Legal 
 Education in France is discussed with great earnestness and frankness by 
 MM. Durand and Terrel iu their Preface to their recent French translation 
 of Professor Diodato Lioy's Philosophie du Droit, 1887. This Preface 
 presents a great deal of interesting information regarding the teaching of 
 Law iu the Universities of different countries. Professor Lioy's able and 
 important work has been translated into French in order to (quicken and 
 pi'omote reform in Legal Education in France. 
 
TRANSLATOR S PREFACE. XI 
 
 As in every other scientific discipline, the true Methods 
 and Elements of Legal Education are necessarily deter- 
 mined by the condition of the Science itself, and their 
 highest function is to become instrumental in promoting 
 the further progress of the Science. They have at once to 
 embody, to sustain, and to reproduce its vitality. JEt quasi 
 cursores mtae lampada tradunt. They have to exhibit 
 the forms of the current movement, to act as the freshest 
 vehicles of its spiritual life, and to regenerate the energy 
 of new activities. Working under the inevitable and 
 visible conditions of human change by perpetual decay 
 and renovation, the Science of Jurisprudence must also 
 change and adapt its methods with the varying surround- 
 ings and forces of the time. Nor will the consequent 
 variations in its external history, and the constant super- 
 session of the limitations of the particular schools, furnish, 
 when rightly understood, any argument against its 
 healthy vitality as an organism, or against its scientific 
 certainty and unity.-' On the contrary, these must be 
 regarded as the very conditions and evidence of its 
 inherent life and development and identity. But the 
 energy of the essential movement must be accompanied 
 by a corresponding flexibility of form, if the harmony 
 between the outer matter and the inner spirit of the 
 Science is to be maintained, and if it is to realize itself in 
 the total organism of human knowledge. And, con- 
 versely, the light and activity of thought must give 
 relation and order to the otherwise chaotic mass of the 
 
 ' The doubt as to the scientific dignity of Jnrisprudence goes beyond 
 Bacon, and is at least as old as Durantis : ' Dicunt quidam, voleutes 
 detrahere scientise juris, quod scientia juris non sit proprie scientia, cum 
 scientia sit de incorruptibilibus et de impossibilibus aliter se habere.' 
 (Speculum Juris, Prcnf, 30.) 
 
xii tkanslatoe's peeface. 
 
 manifold and ever-multiplying phenomena of the Science,: 
 if the historic process is to be spiritually controlled 
 so as to be made subservient to the illumination of the 
 individual and to the good and progress of society.| 
 In short, the form and matter of this, as of every other 
 Science, must mutually condition each other, and its. 
 Methods, both of discipline and of research, must change] 
 and advance with the movement of the social life 
 generally. ; 
 
 Under this general presupposition, it requires no pro- 
 found knowledge of the present condition of Jurisprudence , 
 in England to discover the fact that the Science is ia a state i 
 of transition, both as regards its formal principles and its 
 practical relations. Here, too, the fundamental question of 
 Method and rational Verification has been quickened by a 
 keen sense of the inadequacy of the traditional forms to 
 embrace essential positions. The fertile genius of Bacon 
 was at home in the sphere of Law, but his very familiarity 
 with its details, and his official subordination to its 
 authority, made his handhng of the Methods of Jurisprud- 
 ence in his Encyclopaedic survey of human science less 
 novel and incisive than in the case of other forms of 
 knowledge. He, indeed, recognised the science of 
 Universal Jurisprudence as the crown of all human 
 philosophy, emphasized its essential connection with the 
 Art of Government, and pointed to the cardinal importance 
 of an investigation of the Sources of Law ; and, faithful to 
 the practical spirit of the Jurisconsult and his own order- 
 liness of thought, he has given many suggestive hints 
 regarding the treatment of the concrete details of Law, 
 and anticipated not a few of the later conceptions of 
 legal reform. But he inaugurated no important new 
 method in this sphere, nor did he point the way to any 
 
TRANSLATORS PKEFACE. Xlll 
 
 permanent universal discovery as to the nature of Kight.^ 
 Selden anticipated to some extent the natural principle of 
 Grotius, by whom he was styled ' the glory of England ; ' 
 but he failed to methodize it, or even give it the rational 
 independence necessary for evolviug a system.^ The 
 empirical principle of the Baconian method received its 
 logical and powerful development at the hands of Hobbes ; 
 but his doctrine of absolute and irresponsible sovereignty 
 as the basis and source of legal right, was almost unani- 
 mously rejected in England for more than a century.^ 
 
 ' The contributions of Lord Bacon to Jurisprudence are contained in the 
 De Augmentis, Lib. VIII., and his Leges legum. They are incomplete 
 and fragmentary, but their practical sagacity and sobriety are everywhere 
 apparent. They have been more studied and quoted by Continental than 
 by English Jurists ; and they have been several times published on the Con- 
 tinent for juristic study {De fontibus juris, Paris 1762. Latin and French 
 Ed. by Devauxelles, Paris 1824). Lenninier designates him ' the successor 
 of Bodin,' but sums up his estimate in the following terms : ' Bacon b, 
 surtout envisage la Jurisprudence sous les rapports politiques et pratiques. 
 Ainsi consid&e, son opuscule a de la valeur ; clair, judicieux, aphoristique, 
 il est beaucoup lu et souvent cit^. Mais, quant k la philosophie et a la 
 theorie du droit, il ne saurait avoir de rang et d'importance dans I'histoire 
 de la science.' (Introduction & I'histoire du Droit, p. 89. ) Walter, Ealck, 
 and others quote approvingly from Bacon. See Priedlander's account of 
 Ms position, infra, p. 245. Dr. D. Caulefeild Heron, in his Introduction 
 to the History of Jurisprudence (1860), has given a full and appreciative 
 summary of Bacon's Legal Treatises. 
 
 ^ Selden's principal works are his Mare clausum, 1635 (written in 
 opposition to the Mare libermn of Grotius, in which the great Dutch 
 Jurist claimed for his countrymen the right of free navigation to the East 
 Indies) ; Dejurenaturali et gentium juxta disciplinam Hebraeorum, 1640 ; 
 De successionibus in bona defuncti ad leges Hebraeorum, etc., and his 
 Preface to the Fleta, a commentary on the Law of England. 
 
 ' Mr. Austin's complaint, that the main design of the writings of Hobbes 
 (De Give, 1642 ; Leviathan, 1651) has been ' grossly and thoroughly mis- 
 taken by his modern censors, French, German, and even English,' is 
 almost wholly groundless. Hobbes was too distinct, emphatic, and out- 
 spoken in the statement of his principles and purpose to be materially 
 misunderstood. The Continental Historians of Philosophy have generally 
 
xiv tkanslator's peeface. 
 
 The great English Lawyers from Bracton to Blackstone^ 
 were mainly dependent for their general conceptions upon 
 the practical reason embodied in the Common Law or the- 
 formal definitions of the Eoman Jurists, and the doctrine 
 of natural or rational Eight obtained no profound iavestiga-j 
 tion nor any independent exposition from them. It was. 
 with the entrance of Jeremy Bentham into the domain of J 
 Jurisprudence as an advocate of the reform of Legislation, 
 that the tendency to investigate fundamental principles! 
 by a free and independent method took shape. Striding! 
 in the paths of Bacon and Hobbes, and animated by a 
 supreme scorn for the verbal pedantry of the traditional| 
 formalists, Bentham compelled the juristic spirit to enter 
 into more practical and vital relations, and to realize more 
 clearly its function and purpose in the common movement 
 of the national Ufe.^ John Austin, as the disciple and 
 follower of Hobbes and Bentham, applied an acute and 
 persevering analysis to the concrete material of Law, in 
 order to determine the elements and relations common to 
 the legal systems.^ And, as the chief representative 
 of what is now known as the ' Analytical School of English 
 
 done justice to Hobbes ; and the bistorical Jurists, from Lerminier to Stahl 
 and Ahrens, bave been equally impartial and appreciative of bis genius. 
 Tbe narrowness and ill-nature of tbe theological con tro versy in England (in 
 whicb Hobbes paid back the charges of most of his assailants with com- 
 pound interest) must be admitted, yet Austin has not essentially modified 
 the common conception of Hobbes's doctrines. Nor has even the latestj 
 expounder of Hobbes, — Professor Groom Kobertson, — with his more 
 temperate and careful treatment, affected the received view of the Philo«t 
 sopher of Malmesbury. , 
 
 1 Fragment on Government, 1776. Principles of Morals and Legisk'^l 
 tion, 1780. i 
 
 2 Province of Jurisprudence determined, or Philosophy of Positive Law, 
 1832. Edited, with other two volumes of Lpctures on Jurisprudence, by 
 his widow, Sarah Austin. Later and better Edition by R. Campbell. Also 
 an abridged Student's Edition, by E. Campbell, 1875. 
 
TEAJSrSLATOK S PEEFACE. XV 
 
 Jurisprudence/ Austin has pre-eminently ruled the Legal 
 Education and determined the Legal Modes of Thought 
 in England during the past fifty years/ 
 
 It is not necessary to depreciate the merits or the 
 achievements of the Analytical School in advocatiug. 
 advance to a more philosophical and comprehensive stand- 
 point. To Bentham and Austin, England owes much 
 th* is of substantial value in Legislation and of per- 
 'manent significance in Jurisprudence.^ The robust 
 'energy and practical expediency of Bentham were in 
 ^ place in dealing with the overgrown and entangled con- 
 fusions of Eight in the great jungle of English Law, and 
 he furnished a ready criterion to guide the more beneficent 
 spirit of the new Legislation at the outset of its career 
 of reform. Almost all the particular reforms, advocated 
 by him with so much sagacity and vigour, have been 
 realized ; the abuses they have abolished are already 
 almost forgotten ; and the movement towards the sim- 
 plicity and equality of a codified body of Law has all but 
 reached its goal. Austin supplemented the larger work of 
 Bentham by his patient and ingenious analyses in detail, 
 and he has done much to discipline and sharpen the 
 juristic intellect, as well as to inspire it with fresh courage 
 and confidence in the resources of Jurisprudence. But the 
 
 ' This holds practically at present. As Professor Pollock says, ' To 
 English Students it (Jurisprudence) means at present, the two volumes of 
 Austin's Lectures, or, the one volume into which this matter has been 
 more lately condensed by his able Editor.' — The London University still 
 makes the study of Austin fundamental. 
 
 ' Sir Henry Sumner Maine has clearly pointed out the characterizing 
 distinction between Bentham and Austin : ' Bentham in the main is a 
 writer on Legislation, Austin in the main is a writer on Jurisprudence. 
 Bentham is chiefly concerned with law as it might be and ought to be. 
 Austin is chiefly concerned with law as it is.' — Early History of 
 Institutions, p. 343. 
 
xvi teanslator's peeface. 
 
 unhistorical and unphilosophical character of the Ana- 
 lytical School, and the limitation and relativity of itg 
 positions, have been coming always more clearly into 
 view. Its most appreciative reviewer admits that ' it is 
 desirable to get rid of a great deal of exaggeration withj 
 which Austin's work has been surrounded.'^ The wilful 
 and untenable narrowness of the Austinian System haa 
 been glaringly demonstrated by the progress of historical 
 research. The solid and brilliant expositions of Ancient 
 Law and Custom by Sir Henry Sumner Maine have 
 shown how little Austia had really caught of the broad 
 spirit of the Historical School, and they convinciagly 
 prove the utter inadequacy of the analytical Theory of 
 Sovereignty to explain the origin, nature, or range of even 
 Positive Law.^ Mr. Herbert Spencer has followed vrith 
 a crushing criticism of the doctriues of Bentham and 
 Austin as void of scientific foundation, self-contradictory^ 
 and even unthiakable in themselves, inconsistent with the 
 whole social evolution, and as unjust and undesirable' 
 in practice.^ Finally, the more philosophically and 
 
 1 Mr. Frederic Harrison, in three valuable Articles on 'The EngUsh' 
 School of Jurisprudence ' in the Fortnightly Review, vols, xxiv.-xxv.i 
 (1878-9). Mr. Han-ison says summarily that ' the theory of Austin con- 
 tained little that was in any sense new ; it may be reduced to a small] 
 number of very simple propositions ; and the truth of these propositions 
 has been asserted in much too absolute a way. ' 
 
 ^ Sir H. S. Maine's discussion of the Analytical School is an irresistible 
 demonstration of the inadequacy of Austin's theory, carried on with coiv 
 vincing logic and ample knowledge. It should be carefully read by the 
 student [Early History of Institutions, Lects. sii. and xiii. ). Mr. W. 
 Galbraith Miller has concisely put the argument thus : ' Law existed ages^ 
 before legislation, and early legislators disclaimed any intention of making; 
 law as much as modern judges are in the habit of doing. The theory, so' 
 far as it goes, applies only to a few late laws consciously evolved and 
 expressed.' — Philosophy of Law, p. 16. 
 
 ' This vigorous and unexpected onslaught is contained in Mr. Spencer's 
 
TEANSLATOKS PliEFACE. xvii 
 
 classically trained Jurists, who are now leading the 
 juristic thinking of England, are unanimous in their 
 recognition of the defects, and even of the untenableness, 
 of the cardiaal positions of the Analytical School/ If 
 
 remarkable discussions, reprinted from the Contemporary Review, under the 
 title ' The Man ve/rsus the State '(1884). Among other drastic utterances it 
 is said : 'From whatever point of view we consider it, Bentham's proposition 
 proves to be unthinkable.' ' Bentham's proposition leaves us in a plexus 
 of absui'dities.' 'But first prove your unlimited sovereignty? To this 
 demand there is no response.' Mr. Spencer also continues Sir H. S. 
 Maine's refutation by abundant evidence drawn from even the lowest 
 tribes. 
 
 ^ Thus Professor Holland says : ' " The Province of Jurisprudence deter- 
 mined" is indeed a book which no one can read withoiit improvement. It 
 presents the spectacle of a powerful and conscientious mind struggling with 
 an intractable and rarely handled material, while those distinctions upon 
 which Austin, after his somewhat superfluously careful manner, bestows 
 most labour are put in so clear a light that they can hardly again be lost 
 sight of. The defects of the work are even more widely recognised than its 
 merits. It is avowedly fragmentary. The writer is apt to recur with 
 painful iteration to certain topics, and he leaves large tracts of his subject 
 wholly unexplored,' etc. {Elements'of Jurisxyrudence, p. vii.). Professor 
 Pollock says : ' In any case, it is not desirable that Austin's work should 
 remain for an indefinite time the only means of improvement in this 
 department of knowledge available for our seats of learning ' {Essays, 
 p. 1). The judgment of Professor E. C. Clark, with which he sums up a 
 discussion of the subject, will probably be accepted by all who have 
 earnestly considered it: 'Considerations such as these point to the 
 supersession of Austin's Jurisprudence except as an exercise for more 
 advanced students who can weigh and criticise their author instead of 
 swallowing his somewhat arbitrary dogmas ' (Law Quart. Rev. i. 205). A 
 good deal has been said regarding Austin's style and manner, which are any- 
 thing but classical or attractive. Thus Professor Pollock says : ' Austin's 
 painfuUy laboured style has an effect amounting to repulsion on some 
 persons, of whom I confess myself to be one ; ' and he describes the English 
 student as ' parched with the stem limitations and the crabbed analysis of 
 Austin.' Mr. Spencer likewise refers to 'the exasperating pedantries — 
 the endless distinctions and definitions and repetitions — which serve but 
 to hide his essential doctrines.' These are conspicuous and trying defects, 
 but they naturally correspond to the mechanical and external character of 
 Austin's mode of thought. 
 
 h 
 
XViii TRANSLATOR S PREFACE. 
 
 in Scotland and on the Continent the discussion of the 
 Austinian Jurisprudence has been less keen, it has 
 been because its cardinal doctrines have found little or 
 no acceptance where the movement of juristic thought 
 was firmly based upon the fundamental principles of 
 the Eoman Law, and where, in consec[uence of the 
 characteristics of the spirit of the people, the standard^ 
 of Utilitarianism and the conception of absolute Sove- 
 reignty found less congenial soil than they did in Eng- 
 land/ 
 
 It thus appears that the Utilitarian and Analytical 
 Jurisprudence, as hitherto received, is no longer regarded 
 by our best authorities as a tenable system of Jural 
 Doctrine, nor consequently as a sound basis of Legal" 
 Education. And the more closely we scrutinise its 
 
 ^ Professor Lorimer, in the Preface to his 'Institutes of Law,' says; 
 ' Utilitarianism, as anything more than a phase of the inductive method,! 
 scarcely crossed the Border, and never crossed the Channel at all. But so 
 firm was the hold which it took on England in the last generation, that to 
 many of my elderly and middle-aged readers the possibility of its " utility " 
 being called in question has probably never presented itself. On the 
 other hand, it is rare, I believe, even in England to find a Benthamite pur 
 sang who is under forty. I do not thiak one has turned up among my 
 students for the last ten years, though many of them have been graduates; 
 of the English Universities ; and before another decade elapses ' [written 
 in 1880] ' the preference for the older and grander traditions which Grotius 
 inherited from Socrates, ' ' the great lawyer of antiquity, " as Lord Mansfield 
 called him, through the Stoics and the Eoman Jurists, over those whicl 
 Bentham transmitted to Austin, will, I hope, be as universal and as 
 unequivocal as that for classical and mediaeval architecture over the 
 architecture of the Georgian era has already become.' On the other hand, 
 the Austinian doctrines have found a competent and vigorous advocate at 
 he antipodes in Tlie Theory of Legal Eights and Duties, An introduction 
 to Analytical Jurisprudence. By the Hon. 'William Edward Heame, 
 LL.D. (Melbourne) 1883. The Utilitarianism of Bentham has been care- 
 fully discussed on the Continent (see Kant's Philosophy of Law, xxv,, 
 note), but Austin has been almost entirely ignored. 
 
TRANSLATOR S PREFACE. xix 
 
 elements and relations, the more clearly and irresistibly 
 does this appear. The system is entirely empirical and 
 contingent in its basis and method. It is a one-sided 
 development of unrationaHzed sensationalism, individual- 
 istic determinism, and political materialism. It starts 
 from the accident of a particular Sovereignty, which it 
 consecrates as absokite ; abjures the rational liberty of the 
 individual, which it sacrifices to the lower hedonistic 
 impulse, and culminates in a glorification of the existing 
 order as equally beyond the reach of praise or blame. In 
 making all Eight ' the creature of Law,' and all Law the 
 creation of arbitrary wiU, it deliberately shuts itself off 
 from the very well-springs of human life and the most 
 powerful factors of human activity and progress. It deals 
 with the living products and relations of will as if they 
 were but physical compounds and forces, the results of 
 mere mechanical conjunction and inorganic accretion in 
 space. Even its most humane constituent, the rule of 
 Utility, when fairly looked at, furnishes but a contingent, 
 limited, and relative criterion of Eight.-' In its very 
 expression it is contradictory of the great modern 
 principle of Political Equality, and in its practical work- 
 ing it must ultimately show itself to be unjust. If the 
 rule of ' the greatest Happiness of the greatest number ' ^ 
 
 ' It has been pointed out by Ahrens that the ancient division of the 
 Eoman Jiirisprodence .is founded upon the notion of Utility, ' Hujus 
 studii duse sunt positiones, publicum et privatum. Publicum Jus est 
 quod ad statum rei romanse spectat, privatum, quod ad singulorum 
 utiMtaiem; sunt enim qusadam publice utilia, quaedam privatim.' Dig. I. 
 1. § 6. But he also points out the essential limitations of the Eoman 
 Doctrine of Eight, and he accepts Ihering's suggestive definition of it as 
 ' the system of reasoned egoism' {Oours, 49, 259). 
 
 ^ Professor G. Carle, in his admirable work. La vita del Diritto nei suoi 
 rapporU coUa Vita sociale, has traced the development of the Utilitarian 
 principle from its unmodified egoistic expression in Hobbes through the 
 
XX TRANSLATOR S PREFACE. 
 
 is to determine the ultimate validity of Law and the 
 distributive creation of Eights, on any application of it 
 there will still be a relative, or even an absolute, inequality 
 before the Law, while the measure of the capacity for 
 realizing happiness must always depend upon the varyingj| 
 conditions and caprice of the individuals who are most 
 favoured under it. The claims of minorities have as little 
 security in such a system as those of indeterminate 
 numbers have had under the egoistic tyranny of aristo- 
 cratic Slave States. And besides the variability and 
 limitation of the utilitarian principle, both in its objects 
 and its subjects, the system provides no guarantee for its 
 regulated or permanent appheation to society. The will 
 of even a despotic benevolence cannot be made infallible 
 or hereditary ; and in working such a principle, it musi 
 continually be thrown at the best into contradiction with 
 itself as well as brought into collision with the natural 
 wishes and expectations of the recipients of its benefi- 
 cence.^ Under any other form the utilitarian State is at 
 the highest but an artificial combination of individuals for 
 securing ' the maximisation of happiness,' which simply; 
 means the greatest amount of pleasure possible within a 
 certain area. In the case of such subjective and fluctuating 
 conditions as are implied in ' Happiness,' it must ulti- 
 
 formula of Helvetius — ' the utility of the greater number of men ' subject 
 to the same government — to the 'general interest well understood' ot 
 Bentham, the generalized Utilitarianism of John Stuart MUl, and the 
 Altruism of Mr. Herbert Spencer. See the excellent section, La souola 
 utilitaria nelle scienze giuridiche e sociali. Lib. iii. cap. ii. § 3. Kefer- 
 ence may also be made to the discussion of the Utilitarian School by M. 
 Guyau in his careful work. La Morak Anglaise contemporaine. Morale 
 de I' Utiliti et de V Evolution. Paris 1879. 
 
 ' Kant has pointed out that ' a paternal Government {regimeii pater- 
 naU) is the most despotic Government of all, the citizens being dealt with' 
 by it as mere children.' Philosophy of Law, p. 171. 
 
TKANSLA.TOE S PEEFACE. XXI 
 
 mately come about that ' the greatest number ' will claim 
 and assert the right to determine in what their ' greatest 
 Happiness ' really consists, and everything inconsistent 
 with it at the time will have to yield under the set march 
 of the system. Political Utilitarianism is thus incompatible 
 with the older doctrine of absolute Sovereignty, which 
 inevitably becomes limited and superseded by popular 
 representation and government, unless it forcibly adhere 
 or violently revert to its original form of Divine Eight 
 or of arbitrary power. The expansion and increase of 
 the rights embodied in the community, even under the 
 express sanction of Law, thus gradually lead to a 
 more conscious, inward, and essential realization of the 
 Principle of Eight ; and the rule of Utility, although 
 irresistible as a test of the relative suitability of the 
 particular outward forms of Law to the working con- 
 ditions of the community, can neither create nor secure 
 Eights,^ nor supply an organic principle capable of 
 maintaining or restoring the universal order of society 
 when the ' dormant anarchy ' of its elements may 
 
 ^ Mr. Herbert Spencer, with more than his usual vigour and inoisive- 
 ness, has refuted the theory of the creation of rights according to the 
 Utilitarian and representative system of Government by an ingenious 
 reductio ad absurdum ; ' Bentham tells us that government fulfils its 
 office "by creating rights which it confers upon individuals; rights of 
 personal security ; rights of protection," etc. . . . Mark, now, what 
 happens. . . . The sovereign people jointly appoint representatives, and 
 so create a government ; the government thus created, creates rights ; and 
 then, having created rights, it confers them on the separate members of 
 the sovereign people by which it was itself created. Here is a marvellous 
 piece of political legerdemain ! Mr. Matthew Arnold, contending that 
 " property is the creation of law, " tells us to beware of the " metaphysical 
 phantom of property in itself." Surely, among metaphysical phantoms 
 the most shadowy is this which supposes a thing to be obtained by creat- 
 ing an agent, which creates a thing, and then confers the thing on its own 
 creator ! ' The Man, etc., 88. 
 
xxii TKANSLATOE S PEEFACE. 
 
 become quickened into the awakening confusion of fresh 
 life and energy.'' 
 
 Mr. Austin does not seem to have realized the true 
 bearing of the political and social process on the Principle 
 of Eight any more than he apprehended the conditions 
 of its historical evolution or its psychological basis. He 
 deals with Jurisprudence in the narrowest and the most 
 mechanical way. Limiting the sphere of the Science to 
 the empirical facts of Positive Law, and proceeding upon 
 the false postulate of the universality of an unlimited 
 Legislative Sovereignty, he simplifies the juristic problem, 
 merely by evading its difficulties and reducing it to 
 comparative iusignificance. It has been well said that ' the 
 Austioian view of Sovereignty really is the result of 
 Abstraction.' ^ And so it is ; for it is the most jejune, life- 
 less, barren, and isolated conception of Sovereignty that can 
 be held. Under it. Law becomes but the caput mortuum 
 of a mechanical dissection ; Eight, the factitious accident of 
 
 ^ It would be interesting to examine into the relation of the Utilitarian 
 teacHng to the social discontent and discord of the time, and to the crop 
 of difficult and testing problems with which the Political Utilitarianism of 
 the Government is at present struggling. It is now universally evident, 
 from the spread of Socialistic and Communistic theories, that the move- 
 ments of the national life will be more and more determined by the notions 
 of Right that obtain hold on the community ; and hence the increasing 
 urgency for sound doctrine and teaching. These questions cannot be dealt 
 with in introducing this elementary work, but an attempt may be made to 
 review them in some further discussion of the Schools of Jurisprudence from 
 a more comprehensive point of view. 
 
 ^ Sir Henry Sumner Maine. ' It is practically most necessary that the 
 student should bear in mind — because it does most to show what the , 
 Austinian view of Sovereignty really is — that it is the result of Abstrac- 
 tion. It is arrived at by throwing aside all the characteristics and 
 attributes of Government and Society except one, and by connecting all 
 forms of political superiority together through their common possession 
 of force.' Early Institutions, p. 359. This criticism recalls Hegel's 
 designation of the Eoman Empire as ' abstracte Herrschaft.' 
 
TKANSLATORS PREFACE. XXlll 
 
 an arbitrary despotism. The view was rested upon insular 
 and limited knowledge, and it has been disproved by 
 every subsequent examination into the nature of Custom 
 and the origin of Civilisation. It is oblivious of the simplest 
 facts in the Science of Mind; it ignores the mental 
 character of mental products, and even forgets that the 
 most rudimentary Sovereignty must involve a motive and 
 a reason. 'A despot with a disturbed brain is the sole 
 conceivable example of such Sovereignty.' -^ The Austinian 
 theory is equally incapable of explaining Government, 
 rationalizing Society, unifying facts, or furnishing any- 
 thing like a genuine ' Philosophy of Positive Law.' ^ 
 
 1 Sir H. S. Maine, Early Inst. p. 359. 
 
 ' There is, of course, no desire to under-estimate Mr. Austin's work, 
 while testing it by the severe but impartial standard of the scientific 
 judgment. The Utilitarian School, taken as a whole, is admitted by 
 continental jurists to be a distinctively English product, and it has won 
 a permanent place in the history of political thought. It is justly a 
 subject of reasonable ' national pride, ' as Professor Carle says [La vita del 
 diriito, 444) ; but we must not be blind to its insular limitations, and the 
 fact that it has narrowed the juristic thought of England by concentrating 
 it upon a practical side-issue for two generations. Mr. Austin was a man 
 of the noblest character ; and the beautiful and pathetic tribute to his 
 high endeavour and purity of purpose by his accomplished and devoted 
 wife, cannot be read without a thrill of mingled admiration and regret. 
 But he wanted essentiaHnsight, and even the enlightenment of a large 
 philosophical culture to supply its place, nor did he ever work himself 
 out of the prepossessions of his narrow training into full independence 
 and liberality of thought. Mr. Herbert Spencer has remarked that 
 Austin's early discipline in the army seems to reappear in his theory of 
 sovereignty, which is quite akin to the idea of an outward military 
 despotism. It appears from the sketch of his life by his widow that he 
 had latterly no sympathy with the new political liberalism, which is 
 reaUy the logical result of the application of Bentham's principle to the 
 Modem State. She says, ' It may easily be imagined he regarded with a 
 sort of horror all schemes for placing the business of legislation in the 
 hands of large bodies of men.' 'The idea of popular legislation was to 
 him as alarming as it was absurd.' And in expounding his principle of 
 
XXIV TKANSLATORS PKEFACE. 
 
 The scientific and practical inadequacy of the Utili- 
 tarian and Analytical School points on its various sides 
 to the desiderata at present essential in any attempt at 
 a more satisfactory treatment of Jurisprudence in Eng- 
 land. It is evident, in the first place, that the Principle 
 of Eight must be rescued from its temporary deposition 
 by Bentham and Austin, and raised again to its legitimate 
 place in the forefront of the Science. The varepov 
 irporepov of the Analytical Jurists in their derivation of 
 Eight from Law,^ and the inveterate confusion of the 
 
 utility, he Mmself says, ' Political or civil liberty has been erected into 
 an idol, and extolled with extravagant praises by doting and fanatical 
 vforshippers. ... To the ignorant and bawling fanatics, who stun you 
 with their pother about liberty ( !), political or civil liberty seems to be the 
 principal end for which government ought to exist.' Province of Juris- 
 prudence determined, 2nd Ed. xxviii.-ix. 242. Hence his remarkable 
 pamphlet, 'A Plea for the Constitution,' in support of the reactionary 
 policy of Lord Grey. Austin had but little of the natural force or recon- 
 structive ardour of Bentham, and the Titanic assault on the consecrated 
 positions of Blackstone in the celebrated ' Fragment on Government ' is 
 but feebly reflected in the verbal vituperation of the ' Lectures. ' { ' He, 
 Blackstone, owed the popularity of his book to a paltry but effectual 
 artifice, and to a poor superficial merit. He truckled to the sinister 
 interests and to the mischievous prejudices of power ; and he flattered 
 the overweening conceit of their national or peculiar institutions, etc. 
 For that rhetorical and prattling manner of his,' etc. etc.) Austin was 
 fortunate in having a pupil like John Stuart Mill, who was able to popu- 
 larize his name and his school, but his work remained inchoate, crude, and 
 fractional. We may add to the views of the Utilitarian School already 
 quoted, the suggestive summary of Professor Carle : ' Quando poi una 
 teoria qualche essa, penetra in un paese, come I'lnghilterra ... si pu6 
 essero certi die quella teoria si cambier^ col tempo in una tradizione 
 ritenuta come indigena; finira per destarvi delle aff'ezioni e delle simpatie; 
 e non si aiTesterJi, se prima non avi'Ji, ricevuto tutto I'esplicazione di cui 
 pu6 essere capace. Questo appunto accadde nell'Inghilterra quanto alia 
 dottrina dell'utile.' La vita del diritto, p. Hi. 
 
 ' The notion of 'Right' is really an insoluble crux to the Analytical 
 Legists in any consistent application of their utterly external method. 
 ' Law ' is dealt with by them as an entirely outward thing, and in 
 
TRANSLATOR S PREFACE. XXV 
 
 relations of Jurisprudence, must be corrected and over- 
 come if the science is to attain any definiteness of principle, 
 any criterion of progress, or any organic connection with 
 the general movement of thought. And so the whole 
 inquiry into the subject of Natural Right must be taken 
 up anew, and the conception of it as at once anterior 
 and superior to all Positive Law, according to the rational 
 mode of apprehension from Ulpian tp Kant, must receive 
 
 apparent forgetfulness of tlie fact — laid down as a self-evident axiom by 
 every profound thinker in jurisprudence from Ulpian and Cicero to Kant 
 and Krause — that all Law is necessarily a product of mind, and owes its 
 universality in its various forms in history to the ever-present working of 
 minds. In cutting off the process of analysis from the essentially sub- 
 jective origin of the idea of Right, the Analytical School turned their 
 backs upon the source of light, and could only find the shadows of the 
 primary jural conceptions among the external phenomena of Law. Hence 
 their So-nfm tfinpcy. They proceed at the best as a Physiologist would 
 do were he to study the processes of life only in the excretions of the 
 body instead of in the anatomy and relations of the vital organs. Even 
 the term ' Right ' is an insuperable difficulty to Austin on account of its 
 universality and independence. Hence his absurd diatribes against 
 Blackstone's method, and the truly philosophical distinctions of the 
 Germans : ' I.ought to have remarked that Blackstone has been misled by 
 the double meaning of jus ; and that hence partly, his inane talk [worst 
 than any jargon of the Germans) about the Eights of Persons and 
 Things,' etc. [Lectures, II. 405) (!). In his despair, he lays the blame of 
 his own confusion of thought upon the fulness of language in expressing 
 the distinctions of thought, and explodes upon the alleged ambiguity of 
 'Latin, Italian, French, and German.' A more loyal regard to the 
 primary philological rule laid down by the Roman Jurist — ' Juri operam 
 daturum prius nosse oportet, unde nomen juris descendat ' — would have 
 saved all this and a world of perverted ingenuity besides. The distinction 
 between ' Right ' and ' Law ' is as fundamental in English as in all the 
 other modern languages (Fr. droit and loi, Ital. diritto and legge, Germ. 
 Hecht and Oesetz). So with the Latin jus and lex, and the Greek 
 iUxiot and w>o;. ' Jus ' has now been definitely traced to the Sanskrit ; but 
 the discussion of the biography of the word woul^ lead us too far away 
 from Austin here. (See, however, the reference at p. 184, n, infra; 
 Ahrens' Cours, 107, n; Rbder's Rechtsfilosofie, 55 ; and Carle's Vita del 
 diritto, 87, 111.) 
 
XXvi TKANSLATOE S PEEFACE. 
 
 renewed philosophical authentication.^ But, in the second 
 place, the insufficiency of a merely abstract and universal 
 conception of Eight as a scientific basis of Jurisprudence 
 must also be recognised; and the consequent necessity 
 of an organic and systematic development of the whole 
 jural conceptions, in view of the inherent involution of 
 reason in all the social relationships, must be more 
 earnestly undertaken. It will be the enduring merit of 
 the Analytical Jurists to have pointed out the inadequacy 
 of mere subjective abstractions to give vitality and force 
 to the movement of Law, and the negative issues of their 
 own empirical method only point out more clearly the 
 need of a more rational realism. The quickening and 
 fertUizing of scientific refiection in the sphere of Law 
 can therefore only come from the appropriation and 
 
 ^ Mr. Herbert Spencer has done good service in castigating the super- 
 ficial and too popular views that still prevail regarding the doctrines of 
 Natural Right. 'Says Professor Jevons in his work, The State, in re- 
 lation to Labour, "The first step must be to rid our minds of the idea 
 that there are any such things in social matters as abstract rights." Of 
 like character is the belief expressed by Mr. Matthew Arnold in his 
 article on copyright : "An author has no natm'al right to a property in 
 his production. But then neither has he natural right to anything what- 
 ever which he may produce or acquire. " So, too, I recently read in a 
 weekly journal of high repute, that ' ' to explain once more that there is no 
 such thing as ' natural right ' would be a waste ^f philosophy." ' And the 
 view expressed in these extracts is commonly uttered by statesmen and 
 lawyers in a way implying that only the unthinking masses hold any 
 other. — 'One might have expected,' continues Mr. Spencer, 'that utter- 
 ances to this effect would have been rendered less dogmatic by the 
 knowledge that a whole school of legists on the Continent maintain a 
 belief diametrically opposed to that maintained by the English School. 
 The idea of Natur-redit is the root-idea of German jurisprudence. Now, 
 whatever may be the opinion held respecting German philosophy at large, 
 it cannot he characterized as shallow. A doctrine current among a people 
 distinguished above all others as laborious inquirers, and certainly not to 
 be classed with superficial thinkers, should not be dismissed as though it 
 were nothing more than a popular delusion.' Op. cit. p. 87. 
 
TEANSLATORS PREFACE. XXVll 
 
 application of that organic method of thinking which is 
 now being so fruitfully prosecuted in other departments 
 of science, and which ought to be here specially at home 
 in dealing directly with the concrete realization of the 
 Ideal of Humanity.-^, And, in the third place, the light of 
 the whole historical evolution, as it has realized itself in 
 the sphere of pohtical life, must be brought to bear as far 
 as possible upon the present position and problems of 
 Jurisprudence. This is now so clearly and universally 
 realized in England, that it no longer requires to be 
 urged or dwelt upon. The Science of Jurisprudence 
 will thus find its idea, its purpose, and its completion in 
 a true Philosophy, a living Science, and a reanimated 
 History of Law. 
 
 It is on these lines that the best efforts of the present 
 masters of Enghsh Jurisprudence are now moving, and 
 they are gratefully and fully acknowledged.^ But while 
 
 1 Even Professor Holland still describes ' treatises on Naturrecht ' as 
 'Jurisprudence in the air.' But notwithstanding the famous dictum of 
 Jean Paul, it must now be somewhat evident that the Germans are quite 
 in earnest with regard to occupation of the solid land, only they will 
 assert in science the right to the full juristic measure a ccelo usqiie ad 
 centrum. The description, if it had ever applicability at all, could only 
 be applied to the abstract systems before Eant, and not to the method cf 
 thought which that great thinker originated. Probably Professor Holland 
 will agree with the positions taken up with regard to the doctrine of 
 ' Naturrecht ' by Puchta, Friedlander, and Falcfc ; they are the logical 
 development of Kant's system, to which he has the merit of directing 
 appreciative attention in his Text-book ; and they are practically assumed 
 or indicated in the most important recent works on the Pandects. If the 
 modern German Jurisprudence is still to be described as ' in the air, ' it is 
 so only as the summit of the mountain with its commanding view of all 
 the landscape is in the air, or as the light and heat and the fertilizing 
 elements that stream through or pervade it. 
 
 2 The most important recent Text-books in Jurisprudence are those of 
 Professor Sheldon Amos (A Systematic View of the Science of Juris- 
 prudence, 1872 ; and The Science of Law, 1874), Professor Holland (The 
 
XXVIU TRA.NSLATOE S PREFACE. 
 
 appreciating their work, and even holding that the 
 special juristic problems in England can only be solved 
 by English methods of thought, we may yet turn to 
 Germany for light and leading in those departments of 
 the science where they are conspicuously available. It 
 is now unnecessary to use the language of apology in 
 doing so, since the soundness, value, and validity of 
 the German methods of thinking have won universal 
 recognition.^ Professor Sheldon Amos does not use the 
 language of partiality or exaggeration in the extract with 
 which we started, when he says that 'Modern Juris- 
 prudence is emphatically a German creation.' To give an 
 
 Mements of Jurisprudence, 3rd Ed. 1886), and Professor Lorimer (27ie 
 Institutes of Law, A Treatise of tlie Principles of Jurisprudence as 
 determined by Nature, 2nd Ed. 1880). Their respective merits, as the 
 work of jurists of competent faculty and wide erudition, are universally 
 recognised. Professor Amos's principal work is really a. Juristic En- 
 cyclopsedia, displaying a firm grasp of essential relations and vigorous 
 treatment in detail. Professor Holland's work has received the commenda- 
 tions of the most competent critics, and has won a well-deserved popularity 
 as a text-book ; hut with all its independence and ability, its discussion 
 of principles is somewhat narrowed and obscured by the anxiety to bring 
 details of Roman and English Law into sight. Professor Lorimer keeps 
 more methodically to the universal principles of Jurisprudence, and his 
 elegant and'spirited treatise presents, inter alia, a learned historical vindi- 
 cation of the principle of Human Autonomy as the foundation of Natural 
 Eight, a logical evolution of a rational system of Eights, and an inde- 
 pendent exposition of the Sources of Positive Law. — The present work 
 is more elementary in its form and subjects, and it aims at being 
 introductory and auxiliary to the study of any or all of these excellent 
 treatises. 
 
 1 ,' There have been of late signs of a change in the mental habit of 
 English Lawyers. Distaste for comprehensive views, and indifference 
 to foreign modes of thought, can no longer be said to be national 
 characteristics. The change is due pai'tly to a revival of the study of 
 Eoman Law,' etc. (Professor Holland). — The great progress lately made 
 in the study of the Eoman Law is mainly due to the influence of the 
 Historical School of Germany. 
 
TKANSLATOE S PKEFACE. XXIX 
 
 introduction to the elements, methods, and forms of that 
 creation is the main purpose of the present effort. 
 
 A few words will suffice to indicate the relations of the 
 contents of the following pages, where it is hoped every- 
 thing is clear and intelligible in itself. 1. Puchta's Outliiie 
 of the Science of Bight has been chosen as the simplest, 
 the clearest, and the most pregnant introductory dis- 
 cussion of fundamental principles that is to be found in 
 German. It is the work of a great master who combined 
 the. earnest conviction of a high spiritual life with the 
 severe simplicity of scientific truth.^ Puchta is univer- 
 sally recognised as one of the greatest exponents of the 
 modern scientific Jurisprudence, and he takes rank only 
 next to Savigny himself as a representative of the 
 Historical School. Indeed, the more vital philosophical 
 culture of Puchta, and the wider range of his juristic 
 teaching, as well as his mature art and carefulness in 
 detail, make his exposition a safer and easier guide for 
 the young student than he would find in the bold origin- 
 ality and enterprise of ' the greatest of modern Jurists.' ^ 
 
 ■^ A short biograpMcal sketch of Puchta's life, with a list of his principal 
 works from the Conversations-Lexicon, is appended to this Preface. 
 
 ^ Dr. "W. Guthrie so designates Savigny, and the designation must he 
 accepted at least as far as the work of Savigny extends. Dr. Guthrie's 
 excellent translation of the Eighth Volume of the System des heviigen 
 Romischen Eechts is introduced by an admirable general account of 
 Savigny and his standpoint (Private International Law, A Treatise ore 
 the Conflict of Laws and the Limits of their Operation in Respect of Place 
 and Time. By Friedrich Carl von Savigny. Translated with Notes, etc. 
 2nd. Ed. 1880). The First Volume of Savigny's System has been trans- 
 lated by Mr. Justice HoUoway, late of the High Court of Madras (Madras 
 1867). Mr. "W. H. Eattigan, Fellow of the University of the Punjab, has 
 lately translated the Second Volume of the System {Jural Relations, or 
 the Roman Law of Persons as Subjects of Jural Relations, London 1884). 
 Another distinguished Anglo-Indian Jurist, Sir E. Perry of the High 
 Court of Bombay, has translated Savigny's Treatise on Possession, 6. Ed. 
 
XXX translator's preface. 
 
 Puchta's Outline may be taken as a universalized pro- 
 gramme of the Historical School, fitted not only to make 
 Law intelligible in all its manifestations and forms, but 
 capable also of promoting the spirit of independent 
 inquiry and reflection in Jurisprudence. 2. Any want of 
 completeness in the formal treatment of the elements of 
 the science by Puchta — whose regard for the manifold 
 movement of life restrained him from drawing hard intel- 
 lectual distinctions — is so far supplemented by the concise 
 systematic sketch of Friedlander.-^ They both start from 
 the jural Principle of Kant, but while Puchta found his 
 philosophical element in the vital speculations of Schelling, 
 Friedlander moves in the organic and unified realm of the 
 dialectical thought of Hegel.^ Yet neither of them 
 obtrudes the ultimate philosophical forms and conceptions 
 of the master thinker ; nor is there any real inconsistency 
 in their cardinal conceptions notwithstanding a certain 
 variety in method and expression.^ 3. Falek's Outlines 
 
 1848. Warnkonig's analysis of tHs work has been translated in Clark's 
 Cabinet Library. Mr. A. Brown has published an Epitome and Analysis 
 of Savigny's Treatise on Obligations, 1872. M. Ch. Guenonx has made 
 an excellent translation of the whole of the System into French (Paris 
 1855). 
 
 '■ Friedlander was a Lecturer on Law in the University of Heidelberg 
 in 1847, when he published his Juristic Encyclopaedia. 
 
 ^ The fundamental principles of Hegel's Philosophy of Eight have been 
 ably expounded in English by Dr. Hutchison Stirling in his Lectures on 
 the Philosophy of Law. Regard is also given to the Hegelian doctrine by 
 Mr. "W. Galbraith Miller in his Lectures on the same subject (1884). A 
 very fuU and careful exposition of Hegel's political doctrine is given in 
 Italian by Dr. G. Levy, Professor of the Philosophy of Law in the 
 University of Catania {La Dottrina dello StaAo di' 6. F. O. Hegel, et It 
 altre dottrine intorno alio stesso argomenio, 1884). Reference may also be 
 
 made to Marrast's La Philosophie du Droit de Hegd, Paris 1869. See 
 
 Friedlander's account of Schelling and Hegel, infra, pp. 264-271. 
 
 = There will be found some difference in detail between Puchta and 
 
TEANSLATOE S PEEFACE. XXXI 
 
 have been more or less known in England since the days 
 of Mr. Austin, and their merits as a practical guide to the 
 study of jurisprudence have been everywhere acknow- 
 ledged.'^ The student requires not only to know wliat he has 
 to study, but how he has to study it, and Falck's guidance 
 as a practical methodologist may be safely relied upon if 
 the experience of Germany may be taken as a criterion. 
 The practical and concrete doctrines of Falck will form a 
 natural transition from the more theoretical study of 
 Eight to the more practical examination of Law. Only 
 such portions of Friedlander and Falck as are directly 
 relevant to the study of English Jurisprudence, and sup- 
 plementary to the Outline of Puchta, have been translated. 
 4. The short sketch of a course of Juristic Study taken from 
 Ahrens ^ is meant to supplement Falck's Outline, and to 
 
 Friedlander (as in their views of ' Juristic Right '), hut the discovery and 
 consideration of such points may be left to exercise the judgment of the 
 student. One chief object in view has been to furnish material for 
 quickening the habit of independent reflection. It will be understood 
 that the translator does not identify himself ■n-ith all the views presented 
 in the following pages. 
 
 ' Falck's Outlines {Encyclopddie) were edited after the author's death 
 by Professor Ihering (5th Edition 1851). Ihering pays an affectionate 
 tribute to the noble character, the great erudition, and the conscientious 
 lifework of Falck. He was born in the Duchy of Schleswig in 1784 ; 
 studied Theology as well as Jurisprudence ; was called to a professorship 
 at Christiania in 1813, but eventually became Professor in the University 
 of Kiel, where he laboured till his death. Friedlander expresses the 
 judgment universally entertained regarding his Encyclopsedia (infra, p. 
 272). Austin evidently appreciated Falck's Encyclopsedia, and carefully 
 studied it. It is referred to several times in the Notes accompanying his 
 Lectures on Jurisprudence. 
 
 ^Juristische Encydopadie, Wien 1855. It is only the Appendix to 
 this important work that has been translated. It exhibits the methodo- 
 logical conception of the school of Krause, the most living and hopeful 
 tendency in contemporary Jurisprudence, and so far it supplements the 
 Shellingian and Hegelian aspects of Puchta and Friedlander. It may be 
 
XXXll TEANSLATORS PEEFACE. 
 
 furnish some hints towards the solution of the practical 
 problem of the best methods and subjects of legal 
 teaching. The name of Ahrens, the most distinguished 
 expounder and populariser of the principles of Krause, is 
 now a household word wherever the living spirit of modern 
 Jurisprudence has found a home, and no one has a better 
 right to give the benefit of his insight and experience as 
 a teacher on this subject. 5. Lastly, Friedlander's sketch 
 of the progress of Jurisprudence in the West as a system- 
 atic science, is designed to give some completeness to the 
 various parts by indicating the historical development of 
 juristic thought and the wide and fertile fields of Juristic 
 Literature. 
 
 These elements, notwithstanding their different origin, 
 constitute a unity in virtue of their relation to the unity 
 of the science. It is their treatment from different points 
 of view of that unity which forms the characteristic 
 method of this little book. That method is briefly the 
 representation of all the rational elements in the science 
 as constituting one systematic whole. Such a method, if 
 legitimately carried out and successfully realized, is not 
 only a convenient guide to the synoptic arrangement and 
 study of the science, but the principal means of giving 
 prominence and certainty to its constituent truths. If the 
 relations of its parts are shown to be real, and are realized 
 
 here observed, once for all, that the independent character of the several 
 constituents of this work has heen intentionally and advisedly retained ia 
 order to secure greater variety and breadth of treatment. It would not 
 have been difficult to have fused the materials here presented into a single 
 sketch, but the student would thus have lost the stimulus and confidence 
 which always spring from immediate contact with the thoughts of acknow- 
 ledged masters in their own expression. Any additions to the oric^nal 
 
 matter by the translator— mostly of a subordinate and practical nature 
 
 are enclosed in square brackets. 
 
TKANSLATOES PREFACE. XXXIU 
 
 in their interconnection, every part of the science thus 
 established will give cohesion and stability to every other 
 part and to the whole. This is what the Germans mean 
 by Encydopwdia as a method of science, and even as the 
 highest culminating method of reason, in its ultimate 
 determination of truth. It is this idea which, in its 
 varied application to the different departments and details 
 of empirical knowledge, has been gradually making all 
 knowledge systematic, and uniting it into an organic 
 whole. The conception practically evolved and applied in 
 England by Bacon and later thinkers, has been more 
 methodically dealt with in Germany by her recent masters 
 of thought, and more formally applied by workers in detail 
 to their special sciences. The Encyclopaedic Method has 
 thus been systematically applied by the German Jurists 
 to their proper science, and much of their success as com- 
 prehensive and original thinkers and investigators has 
 been due to it. In view of that success, and especially of 
 the degree in which they have thus been guarded against 
 one-sidedness and the aberrations of a partial method, 
 it seems more than time that both the name and the 
 reality of ' Juristic Encyclopaedia ' should be introduced 
 into England.^ 
 
 ' The common association of an external alphabetical arrangement of 
 the material of knowledge with the term 'Encyclopaedia ' — as in such well- 
 known works as the Eticyclopcedia Britannica, Chambers's Encydopcedia, 
 etc. — is still the chief idolum fori in the way of introducing the philo- 
 sophical conception of ' EncyclopsBdia.' The conception, however, is 
 rapidly gaining way, and is already almost naturalized in English. The 
 Bncyclopoedia MetropoUtana or System of UniveraaZ Knowledge, on a 
 Methodological Plan, projected by Samuel Taylor Coleridge, introduced 
 the rational application of the term. It is now familiar in the sphere of 
 theological translations from the German (see Rabiger's Encydopxdia of 
 Theology, T. & T. Clark). Professor Lorimer aUudes to the want of 
 Juristic Encyclopaedia in English Jurisprudence, and hopes to furnish an 
 
 C 
 
XXXIV TEANSLATOE S PEEFACE. 
 
 Juristic Encyclopaedia is not only the proper scientific 
 form of Introduction to the Science of Jurisprudence 
 generally, but it is also the appropriate disciplinary pre- 
 paration for the systematic study of Positive Law.^ It 
 stands to it in a relation analogous to that of Mathematics 
 to the Physical Sciences, or of Grammar to the details of 
 the several Languages. It may thus be said to exhibit 
 the definitions, axioms, and forms of proof, or the elements, 
 rules, and relations, involved in all Legal systems. The 
 urgency of its requisiteness and the degree of its. avail- 
 ability will depend upon the character and constituents 
 of the particular system under consideration. But it is 
 universally felt and acknowledged that there is no system 
 in relation to which the student so much requires the help 
 and guidance of introductory discipline and conscious 
 method as that of English Law. ' English Law,' says 
 Mr. Frederic Harrison, ' is of all the systems of Law that 
 one which most requires a scientific introduction by a 
 training in principles.' ^ Mr. Austin has also well said : 
 
 Encyclopsedia. The conception of Scientific Encyclopsedia is clearly 
 explained In Friedlander's sketch, infra, pp. 231-236. 
 
 ' Juristic Encyclopsedia is thus taught as the proper methodical intro- 
 duction to the scientific study of Law in all the German Universities, and 
 in several of the universities in other Continental countries- (as in Austria, 
 Holland, Belgium, and Kussia). Details are given hy MM. Durand and 
 TeW-el' in their Preface to Professor Lioy's PMlosophie du Droit. Their 
 careful and unprejudiced estimate of the English system of Legal Educa- 
 tion may be C[uoted. It requires no comment. ' Ce qui caractirise 
 I'enseignement anglais, c'est done son caractere pratique. Si Ton peut 
 louer justement I'organisation du barreau anglais, on ne saurait con- 
 damner trop ^nergiquement ce ddfaut d'etudes thdoriques. Cette Education 
 peut faire de bons avocats et mfime de bons magistrats, mais elle ne 
 saurait or&r de veritables savants qui fassent avancer la science du droit.' 
 Preface, cxxvii. 
 
 = Fortnightly Bevimv, vol. xxv. 126. Mr. Harrison goes on to say : 
 ' A scientific Jurisprudence is not now an intellectual luxury, but a 
 practical necessity, for an English Lawyer,' p. 130. 
 
TKANSLA.TOE S PREFACE. XXXV 
 
 ' To the student who begins the study of the English Law 
 without some previous knowledge of the rationale of Law 
 in general, it naturally appears an assemblage of arbitrary 
 and unconnected rules. But if he approached it with a 
 well-grounded knowledge of the general principles of 
 Jurisprudence, and with the map of a body of Law dis- 
 tinctly impressed upon his mind, he might obtain a clear 
 conception of it as a system or organic whole, with 
 comparative ease and rapidity.' ^ In like manner, Mr. 
 Phillips, in his able and independent discussion of Juris- 
 prudence, says : ' I firmly believe that the intolerable 
 aridity usually attributed to legal study is entirely due to 
 the infatuation with which the student usually persists in 
 exploring the details of his science before he comprehends 
 its outlines. . . . What every Jurist has first to do is 
 to make himself master, not of the Law itself, which may 
 be pernicious and must be imperfect, but of that great 
 system of Jural problems which forms the framework of 
 all Law, and which, as it arises out of the conditions of 
 human existence, must jetain its importance while the 
 human race survives. Let him once clearly perceive how 
 these questions have become necessary and how they are 
 connected with each other, and he will have little 
 difficulty in understanding and criticizing the various 
 solutions of which they are capable. Let him once 
 thoroughly comprehend what is to be done, and the 
 inquiry how it has been done will become an easy one.' ^ 
 Let one more quotation, embodying the authority of 
 Professor Sheldon Amos, describe in his own vigorous 
 and graphic language the general perplexity and con- 
 fusion of the young student of English Law, arising fjom 
 the lack of clear scientific guidance. ' It cannot be 
 ' Lectwres, iii. 362. ' Jurisprudence, 26-7. 
 
XXXV 1 TKAKSLATOKS PREFACE. 
 
 surprising/ he says, 'if the young English student- 
 approaches the Science of Jurisprudence with somewhat 
 of a quivering heart and trembling gait. He knows not 
 where he is going, and is not quite sure whether he is 
 going, or wanting to go, anywhere. He thirsts for some- 
 thing broader, deeper, more indestructible, than anything 
 he can find in Text-boots of English Law, or in the suc- 
 cessive modifications in the substance of Law itself. He 
 hears of " Jurisprudence," and he has a dim hope that 
 what he is in search of may perchance be there. He 
 draws near, and, in place of a Science, or a systematic 
 exhibition of what is Universal and Everlasting, he is 
 often enough regaled with nothing more satisfactory than 
 the story of incessant change, the dreary register of 
 meaningless Variety, the loose guesses of Politicians and 
 Moralists, the reckless verbiage of those who have studied 
 just Law enough to confuse the spontaneous workings of 
 their conscience, and yet who affect just sensitiveness 
 enough of conscience to interfere with their unflinching 
 interpretation of a single Law.' ^ To all this nothing 
 further need be added to justify an attempt to meet such 
 a crying practical want, and to remedy in some measure 
 such deplorable unscientific confusion. It is confidently 
 claimed for the following pages, notwithstanding their 
 foreign origin, that the simplicity, comprehensiveness, and 
 vitality of the scientific conceptions they present are fitted 
 not only to guide the student along the great open highway 
 of Jurisprudence, but to conduct him intelligently to all 
 the special fields of Law — ^English, Scottish, American, 
 or however named — that he may desire to reach and 
 to cultivate.^ 
 
 ' A Systematic View of the Science of Jurisprudence, p. 508. 
 
 2 As a further introductory aid to the study of English Law, this work 
 
TKANSLATOE S PEEFACE. XXXVll 
 
 This little book is accordingly presented as an elemen- 
 tary contribution to the encyclopaedic treatment of 
 Jurisprudence as a science, and as an introduction to all 
 Legal Study. Its merits are wholly due to the classical 
 and accomplished authors whose thoughts it represents ; 
 and the endeavour to make them current in the English 
 tongue will be more than repaid, if they contribute to the 
 further realization of the wish of the distinguished French 
 Historian of Jurisprudence, when he exclaimed, in view 
 of the slumber of his science in England more than fifty 
 years ago : ' Puisse le droit renattre avec vigueur dans 
 la Grande - Bretagne, cette terre des l^gistes et de la 
 Idgalit^ ! ' W. H. 
 
 October 25, 1887. 
 
 PUCHTA. 
 
 BIOGRAPHICAL AND BIBLIOGRAPHICAL NOTE. 
 
 Geoeg Friedrich Puohta, a very distinguished academic teacher and 
 writer on Jurisprudence, was born at Cadolzburg, in Franken, on the 31st 
 August 1798. He received his education at the Gymnasium of Nilmherg, 
 which was then under the superintendence of HegeL In 1816 he became 
 a Student of the University of Eriangen, where he graduated in 1820, and 
 began to lecture (as a University Private Lecturer) on Jurisprudence. He 
 applied the energy of his active scientific mind mainly to the Roman Law, 
 but he also included the subjects of Juristic Encyclopedia and Ecclesias- 
 .ticalLaw in the circle of his Lectures. In 1823 he received a call, to 
 
 will be shortly followed by a translation of Professor Brunner's History of 
 the Sources of the Law of England, as contained in Dr. von Holtzendorffs 
 Encyclojpddie der Hechtswissenschaft (see pp. 276-7, infra). Professor 
 Brunner's admirable outline of the Juristic Literature of England will be 
 found to form an attractive and instructive means of passing from the 
 study of General Jurisprudence to that of the special System of the English 
 Law. 
 
XXXVlll TEANSLATOE S PREFACE. 
 
 Dorpat, and in conseqnence became a 'Professor extraordinarius.' In 
 1828 lie was appointed to a Professorship at Munich, where he entered into 
 friendly relations with Schelling. In 1835 he was called to Maiburg, in 
 1837 to Leipsio, and in. 1842 to Berlin as the successor of Sayigny. In 
 
 1844 he was nominated a Privy CounciLlor of the Supreme Court, and in 
 
 1845 he was appointed a Member of the State-Council and of the Legisla- 
 tion-Commission ; but he died on the 8th January 1846. 
 
 Puchta's method as a Jurist may be properly designated as the 
 historical method ; he was able to follow a given system of Law into its 
 inmost thoughts, and to exhibit it as a spiritual and living unity. He 
 possessed solid philosophical culture, and belonged to the School of Schel- 
 ling. With this he combined a rare acuteness and clearness of tiought 
 and expression ; and in these respects his Lectures, and especially his later 
 writings, are regarded asmodels. In the department of Ecclesiastical Law, 
 he followed a strict tendency which he also carried out in life, and which, 
 in conjunction with the severity of his criticism, drew upon him the 
 attacks of many opponents. 
 
 The most important of his works are the following: — 'Grundriss 
 zu Vorlesungen Tiber juristische Encyklopadie und Methodologie ' 
 (Erlangen 1822); i'Civilistische Abhandlungen,' Bd. i. (Berlin 1823); 
 ' Encyklopadie als Einleitung zu Institutionen- Vorlesungen ' (Berlin 
 1825) ; ' Das Gewohnheitsrecht ' (2 Bde., Erlangen 1828-37) ; ' Lehrbuch 
 fiir Institutionen- Vorlesungen ' (Miinch. 1829); 'System des gemeinen 
 Civilrechts, zum Gebrauch bei Pandekten- Vorlesungen ' (Miinch. 1832) ; 
 ' Lehrbuch der Pandekten ' (Leipz. 1838) ; ' Einleitung in das Eecht der 
 Kirehe' (Leipz. 1840); and ' Cm-sus der Institutionen' (2 Bde., Leipz. 
 1841-42). — Conversations-Lexicon. 
 
CONTEN-TS. 
 
 PART I. 
 
 OUTLINES OP JUEISPRUDENGE AS THE 
 SCIENCE OF EIGHT. 
 
 A JURISTIC ENCYCLOPiEDIA. 
 By G. F. PuoHTA. 
 
 CHAPTER FIEST. 
 
 PUNDAMENTAL PEINCIPLES OP EIGHT. 
 
 A. The Principle of Fkeedom. 
 
 1. Nature, Spirit, Keason, Freedom, 
 
 2. Freedom the Foundation of Right, 
 
 3. Nature and Definition of Freedom, 
 
 B. The Peincipie of Right, 
 
 4. Legal and Moral Freedom, , 
 
 5. The Manifestation of Legal Freedom, 
 
 6. The Twofold Function of Right, . 
 
 7. Relation of Right to Morality, . 
 
 PAGE 
 
 3 
 5 
 
 7 
 
 10 
 12 
 14 
 17 
 
 0. Development of Right in Histokt. 
 
 8. Right as a Principle of Ee[uality, . . . .20 
 
 9. Nature and Stages of the Historical Development, . . 23 
 
 CHAPTER SECOND. 
 
 THE SOUECES OP EIGHT. 
 
 A. The Okigin of Right in General. 
 
 10. The Consciousness of Right, . . . . .29 
 
 11. Th« People and the State as related to Right, . . .32 
 
Xl CONTENTS. 
 
 B. The Vamotjs Soueces of Right. 
 
 PAGE 
 
 12. Conviction of the People ; Legislation ; Science, . . 37 
 
 13. National Conviction and Customary Eight, . . .38 
 
 14. Legislation ; Law and Legal Eight ; Statutes ; Observances, . 40 
 
 15. Scientific and Juristic Eight, . . . • .44 
 
 16. The Means of Knowing Customary Right, . . .48 
 
 17. The Means of Knowing Legal Eight. Criticism ; Interpretation, 51 
 
 18. The Means of Knowing Scientific Eight, . . .56 
 
 C. The Changes of Right. 
 
 19. Change throughout the Historical Movement of Right, . . 57 
 
 20. Abrogations of Particular Propositions and Rights. — Antinomies, 60 
 
 CHAPTEE THIED. 
 THE SPHEEE OE EIGHT. 
 
 A. System of the Relationships of Eight. 
 
 21. Nature of the Relations of Eight, . . . .64 
 
 22. Division of the Jural Eelationships — 
 
 Private Right ; Public Right ; Ecclesiastical Right, . . 67 
 
 I. PRIVATK RIGHT. 
 
 IXDIVIDTTAL RiGHT. 
 
 23. Man as an Individual. Things and Powers ; Property and Obli- 
 
 gations ; the Legal Estate, , . . . .69 
 
 Family Right. 
 
 24. Man as the Member of a Family. Relation of the Family to 
 
 Private Right and to the State and the Church, . . 75 
 
 II. PUBLIC RIGHT. 
 
 25. The Union of the People and the Jural Form of the State ; Con- 
 
 stitutional Right and International Right, . . .78 
 
 Internal Constitutional Right of the State. 
 
 Evolution of Forms of Government; Patriarchalism ; Aristocratic 
 Republicanism ; Democracy ; Monarchy ; Feudalism, . 79 
 
 The Sovereign Function and the Jural Order. Administration 
 of Justice ; Civil and Criminal Process ; Police, . . 86 
 
CONTENTS. xli 
 
 PAGE 
 
 Inteknational Eight as External Political Eight, . 93 
 Transition to Ecclesiastical Eight, . . .94 
 
 III. ECCLESIASTICAL EIGHT. 
 
 26. The Nature and Forms of Ecclesiastical Eight, . . .95 
 
 27. The Eelationships of Eight as Members of au Organism, . 98 
 
 B. System of Eights. 
 
 28. Eight ; Personality ; Jural Capacity ; Natural and Juridical 
 
 ' Persons, ....... 100 
 
 29. The Basis of the System of Eights ; Guarantee of Eights ; 
 
 Wrongs as Violations of Eights ; Protection of Eights hy Self- 
 help and hy Courts ; Actions, .... 102 
 
 30. Division of Eights by Eelation to their Objects into Eights in 
 
 Things, Eights in Persons, and Eights in Actions, . . 106 
 
 Relation of the System of Eights to the System of Jural Rela- 
 tionships, ....... 115 
 
 C. Internal Completion op Eight. 
 
 31. E^ual Eight. Common Eight and Singular Eight. Privileges, 115 
 
 CHAPTER rOUETH. 
 
 JUEISPEUDENCE AS A SCIENCE. 
 
 A. The Philosophy of Eight and Jurispbudence. 
 
 32. Eelation of the Philosophy of Eight to Jurisprudence, . .118 
 
 B. Jurisprudence as Scientific Knovfledge of the System and 
 History of Eight. 
 
 33. The Systematical Knowledge of Eight, .... 124 
 
 34. The Historical Knowledge of Eight, . . . ,127 
 
 C. Object of Jurisprttdbnce as the Science of Right. 
 
 35. The National Character of Jurisprudence, . . . 130 
 Relation of Modern Jurisprudence to the Roman Law, . ,132 
 
 Note on the Study of the Roman Law, . . . 135 
 
,xlii CONTENTS. 
 
 PART 11. 
 
 SYSTEM OF JURISPEUDENCE AS A SCIENTIFIC 
 OEGANISM. 
 
 By Dr. Alexaijdee Feiedlandee. 
 
 Section First. — The Okqanism of Jitkispktjdenob as a Science iw 
 ITS Relations and Membbes. 
 
 PAGB 
 
 1. The Science of Man, ... .139 
 
 2. Relations of Jurisprudence as a Science, . 
 
 3. Division and Principles of Jurisprudence, 
 
 I. Private Right, 
 II. Public Right, 
 
 The Social and Political Sciences, . 
 
 Section Second. — Oeisin and Development of Right. Theory 
 AND Practice. History of Right. 
 
 1. Origin and Development of Right, .... 150 
 
 2. Theory and Practice, . . ... 153 
 
 3. The History of Right, . .... 155 
 
 140 
 141 
 142 
 143 
 145 
 
 PART III. 
 
 THE SCIENTIFIC STUDY OF JUEISPEUDEISrCE ; ITS 
 PEELIMINAEIES, SPECIAL SUBJECTS, MEANS, 
 AND APPLIANCES. 
 
 . AN OUTLINE OF JURISTIC STUDY. 
 
 By Dr. N. Falck. 
 
 Introduction. — The Scientific Study of Jurisprudence 
 generally. 
 
 1. Junsprudence distinguished as a Special Science, . . 161 
 
 2. Nature ancl Value of the Study of Jurisprudence, . . 162 
 
 3. The Scientific Conditions of Jurisprudence as a Science, . . 164 
 
 , Section Fiesj.— Preliminary and Auxiliary Studies. 
 
 1. The Preliminaries and Auxiliaries of Jurisprudence generally, . 166 
 
 2. Auxiliary Knowledge belonging to General Culture, . . 166 
 
CONTENTS. xliii 
 
 PAGE 
 
 3. Auxiliary Departments of Scientific Study not directly connected 
 
 witli Jurisprudence, . .... 168 
 
 Classics, . . . . 168 
 Mathematics, . . .169 
 
 History, . ..... 169 
 
 4. The Study of Philosophy as directly AuxUiary to Jurisprudence, 170 
 
 Logic, . ... 171 
 
 Ethics, . . . . 172 
 
 Psychology, . ... 173 
 
 Section Sboonb. — Tee Special Subjects op Jukistio Study. 
 
 A. The Science of Geneeai Jueispeudencb 
 (The Philosophy of Law). 
 
 1. The Existence of Universal Jural Truths, . . . 175 
 
 2. The Origin of Universal Jural Truths, . . 176 
 
 3. The Extent and Nature of Universal Jural Truths, . . 178 
 
 4. Methodology and Utility of General Jurisprudence, . . 179 
 
 B. The Science of Positive Law. 
 
 5. Law Defined in its Eelation to the State, . . . 180 
 
 6. Nature and Extent of Legal Regulations, . . .181 
 
 7. Of Law and the various Meanings of the word Law, . .183 
 
 8. Positive and Natural Law ; Written and Unwritten Law, . 185 
 
 9. Of the Principle and Value of Customary Law, . . . 187 - 
 
 10. Adjudication ; Equity ; Doctrine, . . . .189 
 
 11. Diversity in the Legal Systems of Different Peoples and Ages, . 190 
 
 12. Common Law and Particular Law, .... 191 
 
 C. SOUECES AND FOEMS OF LAW. 
 
 13. The Sources of Law generally, . . . . .194 
 
 14. Law-Books and Codes, ...... 195 
 
 15. The various Modes and Forms of Law, . . . 196 
 
 16. Division of Jurisprudence, ..... 200 
 
 Section Thied. — The Scientific Means and Appliances of 
 Jtjeistic Study. 
 
 1. Juristic Philology, . ... . . .203 
 
 2. Juristic History and Legal Antiquities, . . . .204 
 
 3. Juristic Hermeneutics, ...... 208 
 
 4. Juristic Criticism, ...... 211 
 
 5. Logical Treatment of the Material, .... 213 
 
 6. Knowledge of Foreign Systems and Comparative Jurisprudence, 215 
 
 7. Juristic Bihliography and History of Literature and Doctrines, . 217 
 
xliv 
 
 CONTENTS. 
 
 PART IV. 
 
 PEINCIPLES OF JUEISTIC METHODOLOGY. 
 
 OUTLINE OF AN ACADEMIC COURSE OF JURISTIC STUDT. 
 By Dr. H. Ahrens. 
 
 1. The Study of Philosophy, . 
 
 2. Juristic EncyclopEedia and Methodology, 
 
 3. The Philosophy of Law, . 
 
 4. Social Economics and Politics, 
 
 5. Historical Studies, 
 
 6. Political and Constitutional Sciences, 
 
 Cnmoulum of Legal Study, 
 
 224 
 225 
 226 
 227 
 227 
 227 
 228 
 
 PART V. 
 
 DEFIJSriTIOJSf AND HISXOEY OE JURISTIC 
 ENCYCLOPiEDIA. 
 
 By Dr. A. Fkiedlandek. 
 
 1. Conception of Scientific Encyclopedia, . . . 231 
 
 2. General Sketch of the History of Scientific Encyclopaedia, . 232 
 
 3. Definition and History of Juristic Encyclopaedia — 
 
 1. From Justinian to the Fifteenth Century, . . . 238 
 
 2. From the Fifteenth to the Sixteenth Century, . . 240 
 
 3. The Sixteenth Century to Bacon, . . . 242 
 
 4. The Seventeenth Century : Grotius and others, . . 245 
 
 5. Pufendorf, Leibnitz, Thomasins, .... 248 
 
 6. Eighteenth Century to Kant, . . 257 
 
 7. From Kant to the present time, . . . 260 
 
PAET I. 
 
 OUTLINES OF JURISPRUDENCE 
 
 AS 
 
 THE SCIENCE OF EIGHT. 
 
 A JURISTIC ENCYCLOPEDIA.. 
 
 BY 
 
 G. F. PUCHTA. 
 
 STransIateD from t]&e ffierman. 
 
€f)npUv ffiv&t 
 
 FUNDAMENTAL PHILOSOPHICAL PEINCIPLES. 
 
 ^ 
 
 A. — THE PRINCIPLE OP FREEDOM. 
 1. Nature, Spirit, Reason, Freedom. 
 
 Jn man we distinguish two sides. On the one side he 
 belongs to nature, and is a natural being like the other 
 creaturesT^ In this connection he is only the most 
 perfect of animals, and like all other creatures he is 
 subject to the necessity of nature. This law is not 
 imposed on the external and visible body only; the 
 invisible and inner being of man is also subjected to its 
 influence. Man thus possesses his body and his soul, 
 with their essential qualities and powers, not from choice 
 of his own, but as facts independent of his personal 
 determination, and they are so far necessary to ihun. 
 "vDn the other side, man is a spiritual beingX He is 
 distinguished above all other creatures by having the 
 possibility given to him of determining himself to some- 
 thing. He has a will, a choice. This possibihty 
 constitutes the freedom of man. In his spirit and the 
 freedom implanted in it, consists the resemblance of man 
 
4 FUNDAMENTAL PHILOSOPHICAL PRINCIPLES. 
 
 to God : — a resemblance attributed to man in the very 
 oldest of our sacred Scriptures. 
 
 Man by his freedom resembles God, but his freedom 
 is not the same in its character as that of God. God is 
 pure spirit, perfect freedom. Man, while free, is at the 
 same time a creature, a natural being. He has a finite 
 freedom that is limited in itself and restrained by 
 physical necessity. 
 
 IJChe faculty which connects the spiritual and the 
 natural side of man, is Eeasom^ It is the faculty by 
 which we know what is necessary. Eeason is an indis-, 
 pensable good for the nature of man as a being subject I 
 to the necessity of nature. It is to man what instinct is ' 
 to the lower animals ; it guides him through the dangers 
 that surround him in the powers of nature which have 
 become hostile to him, and under which he would fall 
 a victim without this faculty. We move through the~ 
 world of nature as in the midst of some powerfully 
 driven machinery whose iron teeth and pinions threaten 
 to seize and crush the unwary. Man lives in constant 
 conflict with heat and cold, with fire and storm, with the 
 resisting earth and its creatures, even with his own flesh 
 and blood, and the very impulses of his soul. And 
 Eeason is given as the weapon to be used by him in this 
 conflict. 
 
 [But it would be erroneous to regard Eeason as the I 
 chief Good. Man has it only on account of his imper- 
 fection. A higher good is given in the Spirit with its 
 faculty of Freedom^ Hence we do not ascribe the 
 operations of Eeasoning to God. For God there is no 
 necessity laid down ; what is necessary becomes, in relation 
 to Him, a free act of His Spirit. And, on the other hand, 
 we rightly deny Eeason to the lower animals. But this 
 
THE PRINCIPLE OF FKEEDOM. 5 
 
 holds only because they are mere creatures of nature, 
 whereas man is not merged in natural necessity, but has 
 at the same time a spiritual being superior to it. Hence, 
 of all the creatures, Man alone is able to know and 
 understand Nature. 
 
 2. Freedom the foundation of Eight 
 
 NEreedom is the foundation of Eight, which is the 
 essential principle of all LaWTJ Hence it follows that it 
 is not from the notion of Season that we get to Eight 
 as the principle of Law. And this is confirmed by the 
 experience presented in the attempts of philosophers to 
 found Eight upon Eeason. 
 
 These attempts enjoy a certain popularity with those 
 who are accustomed to put Eeason above all other 
 human powers. They are satisfied at seeing themselves 
 thus raised above the lower animals, and they are not 
 inclined to plant their foot upon the ladder which leads 
 to still higher regions. They are wont to connect every- 
 thing which appears as an essential prerogative in man, 
 with Eeason as their highest good. Thus it has come about 
 that the Good has been identified with the Eational, and 
 the irrational with the bad; and Eeason, likewise, has 
 been regarded as the principle of Freedom. But there 
 is a contradiction involved in this view. For if the bad, 
 as evil, be the irrational, then freedom, which includes 
 the possibility of evil, cannot be deduced from Eeason, 
 which of itself excludes evil ; and conversely. It would 
 be much more in accordance with Eeason that the good 
 should be realized of necessity ; whereas that it comes 
 through Freedom, which does not exclude the possibility 
 of evil, is contrary to mere Eeason, Eeason is therefore 
 
t) FUNDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 not the principle of Freedom, but is rather an element in 
 human nature antagonistic to freedom ; and it has shown 
 itself to be such from the beginning. 
 
 Only what is necessary is rational. A philosophy, 
 therefore, like the Hegelian, which gives itself out exclu- 
 sively as ' the investigation of the rational,' must of itself 
 renounce the investigation and establishment of freedom. 
 And if, in order to save its claim to universality, it draws 
 everything real into the circle of the rational, — according 
 to Hegel's celebrated proposition that ' what is rational is 
 real, and what is real is rational,' — in the necessity of 
 the alleged relation we are robbed of freedom as it is 
 thus virtually declared to be unreal. What is affirmed 
 of the real, in this famous phrase, holds only of the 
 natural and physical and not of the supernatural and 
 spiritual ; and even the natural, so far as it has a relation 
 to the supernatural, cannot be properly called merely 
 rational. The higher relation' is the side of nature that 
 is turned to the eye of God, to whom, as already stated, 
 even necessity must appear as freedom. At first, at his 
 creation, man was put into this free central sphere. 
 Only when he had fallen from it did necessity as such 
 appear, and only then did the exercise of Eeason begin, — 
 a high gift certainly, and indispensable to the fallen 
 nature. But at the best it is one-sided in its applications, 
 and even prejudicial to the spiritual nature of man, if it 
 obtains sole sovereignty by occupying the place which 
 belongs only to that supreme wisdom which embodies the 
 harmony of necessity and freedom. The philosophers 
 who derive Eight as the principle of Law from Eeason, 
 thus remain outside of its whole sphere, and at best they 
 only reach the subject of Eight ^jc?- scdtum, or by an 
 illogical transition. 
 
THE PEINCIPLE OF FREEDOM. 7 
 
 In order to attain to the principle of Eight, we must 
 start from the spiritual side of man. Do we then deny 
 that Eeason is involved in Eight and Law ? By no 
 means. Eut we have indicated that there is a limitation 
 imposed on the Spirit of man by his modification as a 
 natural being. Man must observe this limitation, and 
 Eeason enables him to recognise and understand it. The 
 human spirit, in attempting to renounce Eeason, falls into 
 folly. In order that the freedom of man may truly 
 exist, it has to be rational, that is, it has to maintain 
 itself within the limits of human nature. Eight is 
 therefore rational ; and this is the point of view from 
 which Eights and Laws may be apprehended as a system, 
 and represented as forming an organism of kinds and 
 species. But this is only one side of Eight, starting from 
 which alone we would never attain to the other side, 
 which is Freedom. And it is in Freedom that the germ 
 of Eight and Law lies. 
 
 Z5 
 
 3. Nature, Limits, and Definition of Freedom. 
 
 'he general idea of Freedom is ' the capability of 
 determining oneself to something.' Two elements may be 
 distinguished in the faculty of freedom : (1) the choice 
 between different possibilities presented to the mind, and 
 (2) the will as the direction of the mind upon the object 
 of choice. The two, however, constitute only one act, 
 viewed from different sides ; and, thus, we may define 
 Freedom as the possibility of a choice or of an act 
 of wilLj 
 
 We have found that there is a limit to the Freedom 
 of man in his quality as a natural being. His Freedom 
 is therefore finite. This limitation is imposed by some- 
 
8 FUNDAMENTAL PHILOSOPHICAL PEINCIPLES. 
 
 thing lying outside of Freedom, and not by itself ; it is 
 an external limitation. Man recognises it by means of 
 his Eeason. Hence his Will is irrational if it strive to 
 break through this limit by directing itself to something 
 naturally impossible, whether the attainment of the object 
 of choice is debarred by the nature of the body or of the 
 soul. But as this limitation is external to Freedom in 
 its origin, the faculty itself is not thereby modified in its 
 own inner nature. Inwardly it is yet unlimited ; and as 
 its essential nature is not determined by the mere 
 external limitation, it would be infinite within itself were 
 it not otherwise bounded. It is not correct, then, to call 
 this external limit a limitation of Freedom itself, just as 
 it would be incorrect to deny that an absolute ruler is 
 unlimited merely because his authority does not extend 
 beyond the boundary of his own territory, or to hold that 
 another was more unlimited merely because he ruled over 
 a country of larger extent. This observation is not 
 superfluous, because Eeason is not unfrequently regarded 
 as a modification of Freedom, and its character then 
 defined as consisting of the quality of rational freedom. 
 
 The contents or constitutive elements of human 
 Freedom are, however, not determined by natural 
 necessity, which is opposed to it as an external limita- 
 tion ; and, therefore, they are not exhibited by Eeason. 
 They are determined by the existence of a Divine will. 
 The relation of human freedom to the infinite freedom 
 and omnipotence of God, is the ground or source of the 
 constituent contents of human freedom. 
 
 This relation is to be tal^en along with the fact that 
 man is not pure spirit, but is at the same time a natural 
 being. And in consequence there arises a natural 
 necessity opposed to his freedom, while this necessity, 
 
THE PRINCIPLE OF FREEDOM. 9 
 
 however, gives no real contents to his freedom. The 
 freedom of man receives its proper content or ground 
 of determination from the fact that there exists a Being 
 above him who is pure spirit and perfect freedom, who is 
 not bound by the necessity of nature, to whom nature 
 itself is only a form of His free will, and who, in a 
 word, is omnipotent. It is thus primarily through the 
 existence of God that human freedom receives its 
 inherent ground of determination. It would be absorbed 
 by the infinite freedom of God but for the relation 
 between them, according to which the freedom of man 
 is subject to the determinations of the divine freedom. 
 
 The nature of this relation establishes more par- 
 ticularly the definition of human Freedom. Freedom 
 has not been given to man that his wUl should have its 
 end and standard of action in itself. Had such been 
 the case, his freedom would have been inwardly un- 
 limited, and man would have been as God, only with 
 the difference of the external limitation of nature ; he 
 would have been a god like those of whom Isaiah says, 
 ' They are vanity, and profitable for nothing,' or as 
 Elijah said of Baal, ' Either he is talking, or he is 
 pursuing, or he is on a journey, or peradventure he 
 sleepeth, and must be awaked.' This is the freedom of 
 which the Atheists dream ; an infinite power in an 
 earthen vessel, a colossus of brass on a pedestal of clay. 
 But man has freedom in order that by his free deter- 
 minations he may do the will of God. The will of God 
 has to be realized. The other creatures are driven to 
 do so by a natural necessity, but man ought to be 
 subject and obedient by his will to the will of his 
 Creator. In his obedience to God lies his real freedom. 
 The freedom of man does not consist in his having no 
 
10 FUNDAMENTAL PHILOSOPHICAL PRINCIPLES. 
 
 superior over him, but in that he has himself the power 
 voluntarily to subject himself to a superior as his supreme 
 Lord, so that this subjection of himself under the higher 
 Will is not an act of external necessity, but of his own 
 voluntary obedience. 
 
 The constituent power in human freedom is, there- 
 fore, the capability of choosing either to subject oneself 
 to the sovereignty of God, that is, to become voluntarily 
 a servant of God, or, in a life without God, to follow the 
 pleasures of the world and ' the lusts of the heart,' which 
 is to become a servant of sin. In other words, it is 
 either to walk in the light of the spirit of God, which is 
 really the true freedom, or to live in the darkness of 
 nature, which is the false freedom. When man chooses 
 the second of these, he does not thereby escape from the 
 omnipotence of God which hems him round. Even 
 should he take ' the wings of the morning,' he could not 
 fly to where he would be beyond the Divine power, for 
 he is subjected to it like the rest of the creatures, but 
 he only has the prerogative of self-determination, under 
 the threatening of judgment, in case of his abuse of the 
 Divine gift of- freedom. 
 
 The proper definition of human Freedom therefore is, 
 that it is ' the power of choosing between good and evil.' 
 
 B. — THE PRINCIPLE OP RIGHT. 
 
 4. Jural and Moral Freedom. 
 
 In virtue of freedom, man is the subject of Eight and 
 Law. His freedom is the foundation of Eight, and all 
 real relations of Eight emanate from it. Hence in the 
 oldest Scripture we possess, the capacity in man for what 
 
THE PRINCIPLE OF EIGHT. 11 
 
 is right is connected with his resemblance to God : ' Let 
 us make man in our image, after our likeness ; and let 
 them have dominion . . . upon the earth.' In the legal 
 rights of all nations, freedom more or less visibly and 
 really occupies this place. The character of this legal 
 or jural freedom has now to be more precisely deter- 
 mined. 
 
 Man is the subject of Eight because of his capability 
 of determining himself, or, in other words, just because 
 he has a will. It is not by antecedent use of his 
 freedom, in a way pleasing to God, that he becomes 
 invested with Eights, nor by first resolving for what is 
 good and for obedience to God. Here lies the difference 
 between Eight and Morality. The latter is not con- 
 stituted by the mere possibility of choice ; man is not 
 moral merely because he has the power of will. Morality 
 is founded upon actual determination and resolution ; an 
 individual only becomes the subject of morality by his 
 own voluntary acts. Man attains to moral freedom only 
 by deciding for the good; and thus freeing himself from 
 the supremacy of evil, although still, it may be, involved 
 in the struggle with it. This struggle with evil, which 
 implies in the very act of conflict a certain liberation 
 from it, is the field of moral activity. On the other 
 hand, man is jurally free from the outset, whatever choice 
 he may make ; the sinner is as legally free as the 
 righteous man, because this quality belongs to him in 
 virtue of his mere power of choice. It is not decision 
 itself, but the possibility of decision, that constitutes the 
 basis of Eight and Law. Moral freedom is freedom 
 from the slavery of sin ; jural freedom is the possibility 
 of an act of will as such. 
 
 This distinction is indicated in the history of the 
 
12 FUNDAMENTAL PHILOSOPHICAL PKINCIPLBS. 
 
 Creation of man and his fall, already referred to. Legal 
 Eight was given to man in dominion over the earth before 
 the decision by which he fell, and it was not lost by the 
 fall nor withdrawn. This decision only sundered the 
 jural power and its real exercise, separating Eight and 
 fact. As it put man into conflict with nature, from 
 which he must now wrest what belongs to him by right, 
 but what it no longer freely yields, and as legal and 
 actual dominion in respect of nature is thus separated, a 
 violation of right or a condition of unrightness, consisting 
 of the severance of the actual and jural power in man, 
 was thereby produced. Eight itself thus preceded the 
 Fall, and had a more perfect existence before it than 
 after, as man's legal right of dominion was then unin- 
 terruptedly combined with actual dominion. 
 
 In thus founding Eight upon the possibility of an act 
 of will, the essential principle of Eight is indicated as 
 that of Equality. Eight implies the recognition of 
 Freedom as belonging equally to all men as subjects of 
 the power of will. It receives its material and contents 
 from the impulse of man to refer to himself what exists 
 out of himself. The function of Eight, as manifested in 
 Law, is to apply the principle of equality to the relations 
 which arise from the operation of this impulse. 
 
 5. The Manifestation of Jural Freedom. 
 
 We have seen that Eight has regard to the will not 
 in its decision for good or evil, but in respect of the 
 mere act of willing, as a potentiality, as a power. How 
 then does this jural will express itself ? How is the 
 principle of Eight exhibited in action ? 
 
 The outward expression or manifestation of Ei"ht will 
 
THE PKINCirLE OF EIGHT. 13 
 
 manifestly be such that the inner decision for good or 
 evil may be left out of account ; the resolution or act 
 will be a jural fact, whether it be for good or for evil. 
 As jural freedom is only the possibility of an act of 
 choice, its expression must also of itself be indifferent to 
 other relations. An act is not of itself jurally right 
 because it is moral, nor jurally wrong just because it is 
 not moral. 
 
 Jural freedom expresses itself actually (1) in the 
 Persons to whom it belongs, and it thus becomes ascribed 
 to the subject whose possibility of willing is thereby 
 jurally recognised. Here then we have a personal relation, 
 indifferent so far to the special moral qualities of the act 
 itself. According to the strict notion of Eight, a fact is 
 equally jural, whether the person acting is a good or a 
 bad man ; the one is as much a subject of Eight as the 
 other, for both are equally subjects of will. Good and 
 ■ bad are predicates of the individual, and not of the Jural 
 Person which is the subject of Eight. 
 
 Again, Jural Freedom expresses itself (2) in tJie 
 Activity of the persons as such. This activity is made up 
 of acts of will, not considered in their determinations for 
 good or evil, but as mere acts of a personal power. The 
 relation of the will, as a power, to an object is shown in 
 the subjection of the object, resulting in the dominion of 
 the will over it. But in this dominion, in which the 
 jural freedom as the principle of Eight is exhibited, there 
 is no question of its moral qualifications. The legal 
 Eight to a thing, which we call Property, must be 
 recognised, even if the possessor makes a morally bad 
 use of it, and although it might find in the hands of 
 another an application much more conducive to human 
 well-being. 
 
1-i EUKDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 6. The Conception and Meanings of Eight. 
 
 ""[flight is consequently the recognition of that Jural 
 Freedom which is externalized and exhibited in persons 
 and their acts of will and their influence upon objecITj 
 Eight is itself a form or condition of Will, primarily in 
 God and then in the whole of mankind. Men are bound 
 together by the principle of Eight, as a power of will 
 which is directed to the recognition of persons, and of 
 thejr acts of will as such. 
 
 Ha. twofold jural will is here indicated : the WiJl of the 
 whole community of society and the Will of the indi- 
 vidual, which is^^recognised by the former so far as 
 the two corresponHj The word ' Eight ' is used of both, 
 and this twofold application has to be observed. 
 
 1. We use the word 'Eight' for the universal or 
 common will, which is the will of the community as 
 a whole, that enacts an express Law of legal freedom, 
 or recognises a regulation or prescription laid down as 
 jural. Eight appears here as a legal injunction ; that 
 is, as a rule or maxim of Eight, or as the whole of 
 a series of such rules or maxims. These principles or 
 maxims of Eight constitute the foundation and essence 
 of the legal Eights of a people, and they accumulate and 
 gather into certain masses, according to the relations 
 which they determine. Such masses of recognised pre- 
 cepts, form the institutional principles of Eight. Thus 
 Property is an institution of Eight when viewed in rela- 
 tion to the mass of jural prescriptions which affect it. 
 Eight, as a whole, thus consists of general institutions of 
 Eight, and these again of particular propositions of right. 
 
 2. The word ' Eight ' is also used for the will of the 
 individual, so far as it corresponds to the will of the 
 
THE PEINCIPLE OF EIGHT. 15 
 
 community as a whole; and for the power, control, or 
 title thus given to some person over an object. Such a 
 Eight as pertaining to a person, may be resolved into 
 certain particular warrants or grounds xpf Eight included 
 in it. Thus, in the Eight of complete power over a 
 thing which corresponds to the idea of property, there is 
 involved the title to possess the thing, to exclusive use 
 of it, etc. Here, again. Eights gather in the sphere of 
 fact into complexes, which are called Eelations of Eight. 
 To say that Persons stand in relationships of Eight, means 
 that they have entered into jural or legal relations to one 
 another ; and this arises from the fact that the Eights 
 which pertain to them, have obtained a connection with 
 each other in the Persons embraced iij the relationship. 
 
 In connection with this second meaning of Eight, 
 three related conceptions have emerged : (1) Title or 
 warrant, (2) Eight as power, and (3) Eelation of Eight. 
 It may be here observed, in passing, that the conception 
 of Eight as ' power over an object ' is the only perfectly 
 definite conception of the thre'e. The Titles which such 
 a Eight includes, only obtain thereby" determination, as 
 they have by themselves no precisely cognizable character. 
 Thus the title, authority, or warrant to use a thing, or to 
 possess it, and therefore to demand it from another, or to 
 refuse it to him, appears as the condition or constituent 
 of very different rights, and may thus receive a very 
 different character. Formerly the tendency prevailed to 
 spht up Eights into their warrants or titles, and thus to 
 disregard the conception of Eight itself.^ Lately the 
 other extreme has been followed, and the notion of the 
 
 ' An example is presented in the definition of Property given, among 
 others, by Muhlenbruch, as 'the Right to possess a thing, to use it, to 
 dispose of it in any *ay, and to vindicate it from every possessor ' ! 
 
1 6 FUNDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 Eelations of Eight, on account of its apparent compact- 
 ness, has been adopted as the basis of the theory of 
 Eight. It will be shown afterwards (§ 21, 22) how far 
 the Jural Eelations are capable of definite comprehension 
 and reduction to a system ; but beyond a certain limit 
 they become lost in the accidental and infinite formations 
 arising out of the living intercourse of society. In such 
 circumstances, the business of the jurist just consists in 
 singling out and disentangling those Eights which have 
 thus become involved in the confused mass that cannot 
 be followed by the non-juristic eye, and in determining 
 the rightful value of any particular jural relation. 
 
 The two meanings of the word ' Eight,' which have 
 now been explained, are usually distinguished by calling 
 the first the objective and the second the subjective meaning 
 of Eight. Jural positions and laws are thus equivalent to 
 Eight in the objective sense, and legal powers or titles 
 to Eight in the subjective sense. These expressions are 
 not well chosen. Above all, they want clearness ; and 
 if this necessary want is supposed to be supplied by the 
 explanation that in the first sense man is viewed as the 
 object, and in the second as the subject of Eight, this 
 only brings out the incorrectness of the distinction more 
 clearly. For, Eight, taken in the first meaning, as a 
 universal will or the common will of a community, is 
 still the will of man, and has man as its subject ; and, 
 on the other hand, man may be the object of a right of 
 dominion or power, as in the second meaning. This 
 inadequate mode of designation should therefore be given 
 up. The relation of the two conceptions — the recognised 
 principle of Eight and jural Power of right — may be 
 expressed by saying that the former is the antecedent con- 
 dition of the latter, and the latter arises out of the former. 
 
THE PEINCIPLE OF EIGHT. 17 
 
 7. Relation of Right to Morality. 
 
 The relation of Eight to Morality has been already 
 touched upon. It follows from what has been indicated 
 on this subject, that the jural and the moral view of a 
 relation, when one of them is set up as exclusively valid, 
 must assume a hostile attitude towards each other. As a 
 mere Eight would ignore whether a decision is for the 
 good or the bad, so would Morality ignore any claim of the 
 will as resting on mere powe^J This point is scien- 
 tifically and practically so important for the doctrine of 
 Eight, that we cannot avoid some closer consideration of 
 it. The conflict between the principle of Eight and that 
 of Morality disturbs the minds of individuals, and it has 
 already occasioned the most pernicious disorders in States. 
 The spirit of revolt against the order of Eight in general, 
 and not merely against certain particular institutions, 
 and the struggle around property which has emerged 
 from time to time, and is. moving in pronounced forms at 
 present, have all originated from this relation. The task 
 imposed upon the function of Eight in order to deal 
 with this conflict, will be afterwards considered (§ 8, 9); 
 here the subject will be looked at from the standpoint of 
 Morals. 
 
 As experience shows that an imperfect apprehension 
 of moral principles, or a practically perverse moral 
 culture, has led to a hostile sentiment towards legal 
 Eight, so it is just the recognition of the true nature of 
 the moral principle that can compose this discord. The 
 possibility of choice is certainly not enough to satisfy 
 the moral criterion, as it is only the prerequisite of 
 moral decision. Choice is, indeed, only of consequence 
 to morality in the practical act of decision. But as 
 
 B 
 
18 FUNDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 morality regards voluntary decision not as an act finished 
 once for all, but as a continuing process repeating itself 
 and changeable, — since there may be a fall into evil and 
 a return to good, — the possibility of decision becomes to 
 it an element of lasting importance. It cannot there- 
 fore take a position of antagonism to the principle of the 
 legal equality of Persons as founded on Eight, since it 
 rather itself establishes such an equality by recognising 
 it as the element upon which its own principle rests, and 
 as continually at work in its own sphere. Even in the 
 sinner the Moral judgment recognises the possibility of 
 an act of will in conversion, and does not inculcate 
 merely the love of the righteous. Morality thus goes 
 along with the principle of Eight so far as Eight goes ; 
 but it also goes farther. 
 
 A hostile relation could therefore only arise between 
 Eight and Morals, if the principle of Eight formed a 
 hindrance to Morality advancing from the point which 
 is common to them, that is, from possible to actual deci- 
 sion in moral action. But this is not the case. It is 
 prevented by the fact that the immediate activity and 
 movement of the principles of Legal Eight and Moral 
 Conduct, fall into two different spheres, the former 
 being embodied in the external relations of persons, the 
 latter in the inner sentiment and disposition of the indi- 
 vidual.<^, then, a certain relation is recognised as legal 
 and protected by Eight, while it may be thought that 
 morally it ought to be ordered otherwise, — such as the 
 act of protecting in the possession of his property one 
 who makes an immoral use of it, — this condition is not 
 of itself an infringement or restraint of morality, because 
 the external relations are of themselves indifferent to the 
 principles operating in this sphere, the moral power 
 
THE PEINOIPLE OF EIGHT. 19 
 
 lying in the inner disjposition and not in the outward 
 means of the individu^ The poor widow who throws 
 in her mite is not less benevolent than the rich man who 
 contributes a large sum in the same relation ; just as he 
 who hates his brother is morally viewed as being in 
 intent as much a murderer as one who takes away his 
 life. And as external relations do not prevent the 
 fulfilment of the moral commandments, neither can 
 they procure their fulfilment. ' Though I bestow all my 
 goods to feed the poor, and though I give my body 
 to be burned, and have not charity, it profiteth me 
 nothing.' 
 
 The war of annihilation against legal Eight, when 
 waged from the standpoint of moral principle, is at the 
 best a transference of the latter to a sphere that is 
 foreign to it. This movement is founded either upon 
 mere narrowness of apprehension and knowledge, or upon 
 a certain affectation and hypocrisy which have a pro- 
 nounced and dangerous influence in the political questions 
 of the time. Any one who desires to have his share in 
 the goods of the earth, — such as property in land, — 
 may found his claim upon the theory that in the person 
 of the first man dominion over the earth was also given 
 to him, but he ought at the same time to admit that this 
 is at most only a principle of Eight and not a moral 
 regulation, and in pursuing his end he ought to follow the 
 path which the law of Eight lays open to him. If he 
 founds upon a supposed morahty which is antagonistic to 
 the principle of Eight in property, while his professed 
 morality at the same time proclaims external goods to be 
 mere chaff, if not even a rock of offence, he is little 
 better than a fool or a hypocrite, who under a thin 
 disguise burns within from the covetous desire of the 
 
20 FUNDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 very idol which he attacks, because it is in the possession 
 of others. 
 
 C— DEVELOPMENT OF RIGHT AS THE PRINCIPLE 
 OF LAW IN HISTORY. 
 
 8. The function of Right as a principle of Equality. 
 
 The Principle of Eight has been bestowed upon man 
 as a spiritual element inherent in his constitution. 
 From the beginning it has been one of the essential 
 bonds which have bound men together, and determined 
 their earthly relationships. 
 
 The individual things which fill the world would, 
 without some preserving bond, wear out and destroy 
 each other. In the domain of nature, the genera and 
 species embodied in it, form such a bond, and they thus 
 preserve its natural inequalities in order. Everything in 
 nature is individual and different; and, as such, one object 
 is unlike, and consequently unequal to the other, in differ- 
 ent degrees of inequality according to their stage of being. 
 The higher an object stands on the scale of the creation, 
 so much the more complete does its individuality appear. 
 But every such object is subject to the law of its species 
 and kind; and as such, a certain degeneration — which may 
 be compared to the power of sin in the sphere of spirit — 
 corrupts the individual formation and destroys it. We 
 observe in nature a powerful striving after individualiza- 
 tion, and consequently after inequality in individual 
 forms. This striving, however, is limited by the law of 
 ' each after his kind,' and it only breaks through betimes 
 as if by way of a transgression of that law, or in violation 
 of the original order. 
 
THE FUNCTION AND DEVELOPMENT OF EIGHT. 21 
 
 In the sphere of mind there are also spiritual bonds, 
 corresponding to these laws of nature, which are destined 
 to hold the different individualities of the spiritual kind 
 together. Thus in the spirit of man, as modified by its 
 connection with nature, the same sort of impulse drives 
 him towards dividing and separating himself from his 
 fellow-men as co-existing individuals ; and it leads, when 
 uncontrolled, to pride, selfishness, and hatred. By this 
 impulse, the differences manifested in human relations 
 are unfolded and intensified, and they therefore need a 
 combining bond, that they may not dissolve into what 
 Hobbes calls a ' bellum omnium contra omnes.' 
 
 rOn this account two guides have been given to man, 
 by which that tendency to individualistic separation is 
 guided and controlled rather than suppressed. The one 
 is Love, which awakens the sentiment of devotion and 
 surrender, the very opposite of the impulse of egoism, 
 and stimulates the individual to assimilate himself to 
 others!^ It has therefore been said of it, in contrast to 
 those lower outgrowths of the . spiritual life, ' it is not 
 puffed up, doth not behave itself unseemly, seeketh not 
 her own, is not easily provoked.' On the foundation of 
 this Love, rest the natural unions and associations of men 
 in society. These include Marriage and the Family, as 
 the product of family love, the People united by the 
 principle of patriotism or Love of Country, and the 
 Community of all mankind, to which universal Phil- 
 anthropy leads. Above all these stands Love to God, 
 the true source and end of all Love. 
 
 ^he second guide is the sense of Eight. This sense 
 is likewise destined to guard the condition of Equality 
 among men, by reducing their individual inequalities 
 under that which belongs equally to all, namely, Per- 
 
22 FUNDAMENTAL PHILOSOPHICAL PEINCIPLES. 
 
 sonality as the possible will of all, and by thus setting 
 limits to the impulse and tendency of the individual to 
 refer and subject others to himself. This function of 
 equahzation, is effectuated by the individual being led 
 to recognise others as possessiag rights like his ownTf 
 
 Upon the natural inequalities of men and Their 
 mutual relations, rests the manifoldness of Eight. These 
 inequalities present the material which Eight has to master 
 and reduce to harmony. In this process the form of 
 Eight is reacted upon, and variety is introduced into its 
 manifestations. Eight brings into prominence the per- 
 sonality of man, and it recognises the diverseness of 
 personality. It overcomes the differences among men, 
 not by negating or effacing them, but by constituting 
 them into differences of Persons, and thus controlling 
 them. According to the principle of Eight, Man as an 
 individual is a Person ; and he is so, too, as the member of 
 a Family, as the member of a Church, and as the member 
 of a Nation. But there exists a difference in the modes 
 of Eight among these personalities. The jural Eelations 
 are different according to the position of the person, and 
 thus there arises a variety of jural Institutions. In the 
 activity or practical action of persons. Eight lays stress 
 upon the fact that this activity is mainly a subjection 
 of objects to the will, as the ground of dominion over 
 them ; and this dominion or power is different according 
 to its objects. There thus arise variety and multiphcity 
 in the Eights which men can acquire, as Property, Claims, 
 or Powers. 
 
 Thus the march of Eight trends towards an Equality, 
 which gives to the merely jural view of things a hard 
 and cold aspect, and it appears lifeless to the impressional 
 phantasy and the pleasing play of the feelings. The 
 
THE FUNCTION AND DEVELOPMENT OF EIGHT. 23 ' 
 
 many-sidedness of human nature, is contracted in the 
 sphere of Eight into the colourless conception that only 
 represents what Person involves. It makes all the riches 
 of external nature shrink into the equalizing conception of 
 mere Things, and the ideas of ' Claim ' and ' Obligation ' 
 sufi&ce for the representation of the whole infinitely 
 varied intercourse of men in society. Yet the value of 
 Eight ought to be judged by its fruits. Beneath this 
 cold and apparently insensible covering, there stirs and 
 moves the warm life of humanity in all its fulness 
 and variety, not really checked and suppressed, but 
 furthered and protected. What appears to the quick 
 overflowing feeling as a robbing of the manifold richness 
 of existence, is in reality the very condition which 
 prevents the destruction of all Individuality. The 
 order of Eight may be compared to the understanding, 
 which in the luxuriant entanglement of the forest 
 arranges and clears the trees and shrubs that threaten 
 to suffocate each other: a process which, with all its 
 importance, is apt to excite a certain childish repugnance 
 against its own activity. 
 
 9. Justice and Equity. The Historical Development. 
 Ancient and Modern Right. 
 
 vjhe historical development of Eight rests upon a 
 twofold task which it has to discharge. 1. On the one 
 side, it has to attain to supremacy and dominion over 
 what is unequal and individual in man, and it must not 
 be controlled by the^ej^ It is only when this has been 
 attained that the notion of Eight appears in its purity. 
 Personality, as the element equally belonging to all men, 
 is then apprehended as the foundation of the principle of 
 
24 FUNDAMENTAL PHILOSOPHICAL PEINCIPLES. 
 
 Eight, and brought into practical activity ; and all the 
 natural differences of Individuals, are subordinated to this 
 principle of equality and recognised as controlled by it. 
 '^. On the other side, the Individual is also to be secured 
 "In the possession and enjoyment of his rights ; and the 
 forms of Eight have to be determined according to the 
 material facts of varied individual conditions, ^thout 
 prejudice to the purity of the notion of Eight/ The 
 institutions of Eight are, therefore, to be so fashioned 
 by law that they may correspond to the existing indi- 
 vidual requirements. — "We may call Eight from the first 
 point of view, ' strict Eight ' or rigid Justice ; and 
 from the second point of view ■' equitable Eight ' or 
 Equity. 
 
 H^e idea o£-^ight has been only gradually unfolded in 
 the course of time with the history of mMR[ The rise of 
 the Peoples, forms a turning-point in the history of Eight. 
 Before that period, mankind was divided merely into 
 Families, between which no bond of Eight yet existed. 
 In the separate Families, the sense of general Eight was 
 still suppressed by the preponderance of that personal 
 Love upon which the family rests.'' When the time was 
 come, there arose another Union which occupied a 
 position between the Family and Mankind at large. 
 This was the People as a community, held together by 
 common descent, language, and location. The members 
 
 ^ A trace of this view is found in what the Roman Jurists say of the 
 ' jus naturale, ' as a division of Right different from the ' jus gentium ' 
 and 'jus civile.' {Inst. L. 1, § 3 ; L. 4, 5, D. De just, et jure, i. 1.) 
 They mean hy the 'jus naturale,' Right prior to the rise of the peoples,— 
 the Right of Men not regarded as members of a nation. They include in 
 it particularly the relations of the Family according to its natural founda- 
 tions, and therefore viewed apart from its special developments among 
 the various peoples. Hence they also say that jure natiirali all men are 
 
THE HISTORICAL DEVELOPMENT OF EIGHT. • 25 
 
 of the People are also bound together by a principle of 
 Love, without which indeed no natural society is con- 
 ceivable ; but this is distinguished from mere personal 
 love, as the love of Home and of Country. This love, 
 indeed, embraces the associates of the home, but not in, 
 their individual relations merely ; it regards them as 
 fellow-countrymen, and admits otherwise of a relation of 
 indifference towards their individuality. When we are 
 moved by the Love of our country and people, an indi- 
 vidual of foreign origin may even appear to us as 
 standing closer in all individual relations than a country- 
 man. In the place of love of the Individual, as such, — 
 which is antagonistic to the pure development of the 
 consciousness of Eight, — there arises among the People 
 in connection with their common relations as countrymen, 
 the principle of the recognition and respect of the human 
 Person as the subject of Will ; and the idea of relations 
 of Eight, then springs up freely and shoots forth with 
 vigour. The authority upon which order in the Family 
 rests, is represented in the head of the Family, whose 
 commands the members of the family receive with loving 
 reverence. The People have no natural Head ; and 
 hence the order of Eight here assumes form, instituting 
 a magisterial head or authority by which this order is 
 maintained. Thus it is only among the peoples that 
 Eight comes into a position which makes its pure 
 
 free, for the absence of freedom arose from the wars between the different 
 peoples ; and to this they refer their deviations from the rigid view that 
 Slaves were to be treated entirely as Things. (L. 64, D. de cond. jud. 12, 
 6. ) The ' jus naturale ' is in their doctrine, the Right to which men were 
 impelled by a sort of natural instinct which in a certain way works also 
 upon the lower animals. ' Jits naturale est quod natura ' — not naturalis 
 ratio — 'omnia animalia doouit.' It rests upon an obscure impulse, and 
 not upon full consciousness. 
 
26 FUNDAMENTAL PHILOSOPHICAL PEINCIPLES 
 
 development possible. And hence it is only with the 
 Peoples that the proper history of Eight begins.^ 
 
 The Peoples are themselves to be regarded as different 
 individualities, dissimilar and unequal in nature and tend- 
 ency. This individuality forms what we call the national 
 or popular character. Hence the Rights of peoples are 
 different ; and the peculiar characteristics of a nation are 
 exhibited in its System of Eight, just as in its Language 
 and Customs. The difference between systems of Eight 
 is either contemporaneous, as presented between the 
 systems of peoples existing side by side with each other; 
 or successive, as between systems following each other in 
 time. This difference in succession, appears in any 
 particular people when its system of Eight passes 
 through a process of formation in history. In like 
 manner, there is a process of development in the history 
 of Eight that embraces the whole of Mankind, and in 
 which every people has a particular share. Every 
 people forms a link in the great chain which stretches 
 from a beginning lost in the night of time, through 
 the historical ages, to the end that is to come. The 
 Eight of any one people is therefore not merely 
 a fact belonging to this individual people, although 
 it may appear such when we view it in its contem- 
 poraneous relations : "^ in the historical succession of the 
 
 ' The Eoman Jurists indicate and designate this progress by the expres- 
 sion 'jus gentium.' The peoples are now separated, governments founded, 
 property divided, lands bounded, fixed dwellings erected, and obligatory 
 intercourse instituted (L. 5, D. De just, et jure). Right has been 
 realized in consciousness; and the 'jus gentium' is founded upon the 
 ' naturalis ratio.' This philosophical apprehension of the jus gentium by 
 the Roman Jurists, is to be distinguished from the practical significance 
 which the conception had for the Romans ; the latter falls to be dealt with 
 in the History of the Roman Law. 
 
 2 The Roman Jurists stopped at this point, as in their view the pro- 
 
THE HISTORICAL DEVELOPMENT OF EIGHT. 27 
 
 peoples it belongs, at the same time, to the whole of 
 Humanity. 
 
 This movement in the historical formation and 
 development of Eight, may be partly divined, partly 
 traced with clearness, as it advances from step to step 
 and from member to member of the succeeding peoples. 
 The principle of Eight has gradually unfolded itself to 
 greater purity and clearness by laying aside, at stage after 
 stage of its history, the accidental envelopments which 
 have covered and obscured it. Among the Eoman people, 
 it attained the completeness and perfection which it was 
 destined to reach in the ancient world ; and the Eoman 
 system has been handed on to the modern world, in which 
 a. new march of development and progress has been 
 begun. 
 
 We may say, generally, that the first relation of the 
 function of Eight, which we have indicated as the 
 mastering and controlling of the inequalities of indi- 
 vidual life, has been realized in the system of the 
 Eoman Law. To perfect the function of Eight on the 
 other side, in realizing the security and protection of 
 individual rights, without derogating from the principle 
 of Equality already won, may be indicated as the voca- 
 tion-jQf the modern world. This, however, is not to be 
 taken as suggesting that the Eomans ignored this latter 
 element of Eight; a glance into the remains of their 
 juristic literature, shows that it was otherwise. But, on 
 the whole, only the beginning of the realization of Eight 
 was made by the Eomans ; and particularly in that 
 
 gress of Eight from the jus natwrale to the jus gentium, finds its end in 
 the jus civile, the system of Eight realized by a particular people. In 
 the jus civile all the problems left over by the jv^s naturale and the jus 
 gentium, are resolved. 
 
28 FUNDAMENTAL PHILOSOPHICAL PKINCIPLES. 
 
 department of Eight which it was their main task to 
 cultivate. With the greater variety which distinguishes 
 our outer and inner hfe from that of antiquity, the 
 number and importance of the particular relations and 
 conditions it embodies, have, at the same time, increased. 
 The system of Modern Eight, has to recognise and accept 
 these new relations and conditions, and its special 
 problem is how to attain a satisfactory result in deaUng 
 with them. 
 
THE OEIGINATION OF EIGHT. 
 
 A.— THE ORIGIN OF RIGHT GENERALLY. 
 
 10. Right a Divine Order. The Cousoiousness of Right. 
 
 The existence of the Eight which determines and regulates 
 human relationships, rests upon the consciousness which 
 man has of Freedom in the act of will. This conscious- 
 ness man has derived from God. Eight is thus a form 
 of the Divine order which has been bestowed upon man, 
 and received by him into his consciousness. 
 
 The principles of Eight come into Existence in this 
 form of human consciousness. But, it may be asked, 
 by what way do they enter into consciousness ? In 
 solving this question, the same distinction has to be 
 made between the supernatural and the natural that 
 applies to Eeligion ; and indeed Eight itself, as Eight- 
 eousness, is to those who have not lost the knowledge of 
 its origin, a part of Eeligion. Eight comes into the 
 human consciousness, partly by the supernatural way of 
 Eevelation, — the very first declaration of Eight being 
 attributed in Scripture to God, — and partly by the 
 
30 THE OEIGINATION OF EIGHT. 
 
 natural way of a sense and impulse inborn in the 
 Human Mind.^ Here we have to deal with this natural 
 origination of Eight, in which the real Creator of it 
 remains concealed in Himself, and Eight appears in fact 
 as a creation of the human spirit. And in its further 
 development and formation, it not merely appears, but 
 actually becomes a product of human activity. 
 \^11 human Eight presupposes a common Consciousness 
 as its source. A principle of Eight becomes a fact by 
 being recognised as such in the common conviction of 
 those to whom it is applicable. Eight is the common 
 will of the persons or members who are included in a 
 sphere of Eig^J Through this common consciousness of 
 Eight, as by a common Language and a common Eeligion, 
 the members of a people are bound together in a definite 
 union. This union rests upon a certain relationship of 
 body and mind ; it extends beyond the intimacy of the 
 inner family bond, and arises out of an actual division of 
 the race of mankind. The consciousness which per- 
 
 1 [The idea that the origination of Right is to be explained partly as 
 proceeding by way of supernatural Revelation, and partly by way of the 
 natural eonimunity of the People, is certainly a very old opinion, and it 
 has specially been represented in the Christian Church. But the view is 
 still older which seeks the origin of Right neither in what is specially 
 theological nor in what is merely mechanical, but rather in what is 
 ethical, as the mean between these two opposite members. According to 
 this theory, the order of Eight, however external, negative, and in need of 
 constant improvement it may be, is recognised as an ethical Good, which 
 disciplines the purely natural association of Nationality, and thereby 
 points beyond itself to a deeper and more internal ethicality, by securing 
 for the individual, as well as for the ethical whole, the room in which it 
 may develop itself and attain to that higher destination (Schleiermacher, 
 Entwurf eines Systems der Sittenlehre, § 177, 178). This ethical doctrine, 
 following upon the influence of the theological view in deepening the appre- 
 hension of Eight after it had sunk into what was merely mechanical, appears 
 to be making way iu tlie jural consciousness of our time. — Eudorff.] 
 
THE ORIGIN OF EIGHT GENEEALLY. 31 
 
 nieates the members of a people in common, is born with 
 them and makes them spiritually members of one whole. 
 It constitutes, in a word, the national mind or spirit of 
 the people ; and it is the source of human or natural 
 Eight, and of the convictions of Eight which stir and 
 operate in the minds of the individuals. 
 
 The consequence of this mode of origination, induces a 
 diversity of Eight among the various peoples. Peculi- 
 arities in their views of Eight, belong not less to the 
 characteristic marks of different nationalities than do the 
 pecuharities of their Languages. As the fellowship of 
 Eight is one of the spiritual bonds which hold a people 
 together, so the peculiar development of the conscious- 
 ness of Eight is one of the elements which distinguish 
 any one people from all others. If a people splits up 
 into several divisions, the relationship between them in 
 Eight, as in Language, will continue to remain visible ; 
 and, on the other hand, each of the new nationalities will 
 pass through a peculiar development in both connections. 
 This phenomenon we may, for instance, perceive most 
 distinctly among the peoples that have arisen out of the 
 Germanic stem. In like manner, even in one people, 
 without its being parted into independent sections, there 
 arise national divisions distinguished from each other 
 like separated peoples : the one people being distinguished 
 into certain tribes, and these again into smaller branches. 
 These divisions of a people are distinguished from each 
 other in their views of Eight by certain idiosyncrasies ; 
 especially in those points in which their individuality 
 works most decisively. Nevertheless, the peculiarities 
 thus arising, are maintained in harmonious co-operation by 
 means of those views of Eight which are common to the 
 whole people, under which these peculiarities appear but as 
 
32 THE ORIGINATION OF EIGHT. 
 
 individual and partial deviations. Thus every people 
 has its own form of Eight corresponding to the national 
 characteristics, which, like its Language, is the property 
 of all the tribes and branches into which it is divided. 
 And along with this common possession of Eight, we find 
 among the different divisions of the people, certain 
 peculiarities in Eight, as well as in Language, which 
 indicate a peculiar local and limited origination. Eight, 
 as well as Language, has its provincialisms. 
 /Hence arise the notions of a Common Right and a 
 Particular Sightly These notions are, in themselves, rela- 
 tive. .<^ommon Eight may be called the Eight of the 
 larger (uvisions of the people, in contrast to the particular 
 Eights of smaller sections embraced in the unity of the 
 wholgl- The relation between these two is that of genus 
 to species, or of species to variety. Usually, however, 
 the phrase ' Common Eight ' is used only for that Eight 
 which belongs to the whole people in common ; and 
 ' Particular Eight ' for the special Eight of one of the 
 divisions into which it immediately or mediately falls. 
 We use the expression ' Common Eight ' only of that 
 Eight which has no higher genus over it, and to which it 
 would have to be referred as ' Particular Eight.' ^ 
 
 11. The People and the State as related to Right. 
 
 It has been said that Eight comes into existence in 
 human consciousness ; and this consciousness has been 
 
 1 [As there is a Particular Right of the several branches and divisions of 
 the people within the whole National Right, so there is formed between 
 and over the Nations into which the whole of Mankind is divided, a 
 Common International Right ; but of its mode of origin the analogy 
 of Language gives no rule of explanation. The ratio naturalis is still 
 more general. — Eudokff.] 
 
THE ORIGIN OF EIGHT GENtlEALLY. 33 
 
 determined, more precisely, as the consciousness of the 
 People. But the actual existence of Eight takes the 
 form of fact ; and for this the mere consciousness of it 
 does not suffice. We can only ascribe a reality to Eight 
 according to its nature, when the relations of life are 
 ordered according to what it prescribes. Eight is em- 
 bodied in rules of action ; it enjoins that something be 
 done or be left undone. The consciousness of Eight is, 
 therefore, at the same time, the Will that what is conform- 
 able to Eight shall become a fact.'' With Eight there is 
 thus given, by implication, the possibility of what is not 
 right but wrong, as a state of fact which is not conformable 
 to the prescriptions of Eight. The will of the subjects or 
 associates of Eight, is directed practically to the realiza- 
 tion of Eight and to the removal of wrong. This Will, 
 however, needs an organ in order to be carried out in 
 fact. And this organ, in which the Common Will is 
 embodied, and by which it receives its realization, is the 
 power or government through whose existence the people 
 becomes a civil commonwealth or a State. 
 
 ^he same power which generates Eight also forms the 
 State. Without the State, Eight would have only an 
 incomplete and precarious existence^ Apart from the 
 
 ' A Roman Jurist (Ulpian) defined the sense of Eight (Justitia) as a 
 Will : Justitia e-it constans et perpetua voluntas jus suum cuique tribuendi. 
 He then indicates the Precepts of Right thus : ' Juris praecepta sunt haeo : 
 honeste vivere, alterum non Isedere, suum cuique tribuere ' (L. 10, D. Be 
 just, et jure, i. 1). The latter two Precepts indicate those which refer to 
 the relationship to other persons, and which are partly of a negative and 
 partly of a positive kind. The first Precept refers to the person of the 
 individual himself. The Jurist thus signifies that it is not enough merely 
 to injure no one and to give every one his due, in order to avoid coming 
 into collision with Right. Right thus further implies that any unworthy 
 mode of conduct is a degradation of our own personality. 
 
 C 
 
34 THE ORIGINATION OF EIGHT. 
 
 State, the Common Will upon which Eight rests, would 
 be rather a mere wish than a real, effective Will. 
 
 The People and the State stand in the closest connec- 
 tion with each other. The national union is the basis 
 upon which the political institution is reared ; it is the 
 soul and the life which permeates the organism of the 
 State. The combination of several peoples into one and 
 the same State, is a modification of their natural condi- 
 tions ; and its permanent success depends upon whether 
 one of the national elements is powerful enough to assimi- 
 late the rest. Till this has taken place, unless perchance 
 some common external danger somehow compels union in 
 action, inner dissension will accompany any deviation 
 from the path of nature, although the dominating 
 element is perhaps strong enough to hold the conflicting 
 elemenis in order by external force or policy. On the 
 other hand, one people may form itself into several States. 
 If these States form together a political whole correspond- 
 ing to the body of the people, this is no deviation from 
 the natural order of formation ; the peculiarity lies only 
 in the greater relative independence of the members of 
 the political whole. An anomaly, however, would arise 
 if this independence in any case, extended itself so as to 
 absorb the political unity to such a degree that a political 
 union corresponding to the range of the whole people no 
 longer remained. Here the political separation will 
 either have an internal national division for its conse- 
 quence, and the people will divide into several peoples, 
 or, if the national unity is powerful enough, it will succeed 
 in overcoming the accidental political separation. In 
 either case the anomaly, which may have existed for some 
 time, will again cease. The internal connection between 
 Peoples and States is also seen in their relation to the 
 
THE ORIGIN OF RIGHT GENERALLY. 35 
 
 soil. To every people its own particular portion of 
 the soil is assigned ; and with this it grows up so that 
 this portion of the land belongs to its very being and 
 becomes its Country. The people thus become changed 
 by emigration ; and, conversely, immigrants are gradually 
 permeated by the national spirit which, as it were, broods 
 over their new country, and so they become nationalized. 
 Hence the State, in like manner, rests upon a territory ; 
 and thus States come likewise to form divisions of the 
 earth. 
 
 But notwithstanding these points of connection, a 
 People and a State are distinct in idea ; and they ought, 
 to be carefully distinguished. 
 
 fXhe State is not a natural union like the People, 
 although it is founded on this natural union. States 
 arise, like Eight itself, through the medium of the human 
 WiU.\_This must not be misunderstood. The position is 
 only to be maintained in the same sense in which it has 
 been adopted in connection with Eight. As it holds of 
 Eight, so the State, in its ultimate origin, is a thing given 
 and instituted by God. Government, and obedience to it 
 as the ruling power, are from God. The mind of man 
 has not invented these institutions, but the formation and 
 development of States and their constitutions have been 
 left by the Creator to the human agencies and methods 
 that arise out of the will and freedom of man. Hence it 
 is not the Will of the individuals as such, which forms the 
 State; this Will would never be able to produce an organic 
 whole such as the State is ; and no State has ever arisen 
 in this way. But the Will of the People, the Will which 
 men have as members of this natural union, is the natural 
 source of the State and of its constitution. The spirit 
 of the people, as the national spirit, brings forth the 
 
36 THE OKIGINATION OF EIGHT. 
 
 State in the same way as it evolves Eight ; it does this 
 by uniting the members of the people in the will to sub- 
 ject themselves to its authority as the organ of Eight. 
 
 The philosophy of the Eighteenth Century grounded 
 the State upon the will of the individuals, according to 
 the theory of a Compact concluded with each other. 
 This was the theory of the Social Contract, — the Contrat 
 social of Eousseau. Among more recent thinkers the 
 view has greatly gained ground, which regards the State 
 as a natural growth, whose formation is independent of 
 the human Will. Both theories are equally far removed 
 from the truth ; the truth of each lies only in its negation 
 oLthe other. 
 
 [ijom what has been said, the relation of the State 
 to Eight becomes at once apparent. Eight does not 
 primarily arise out of the State; much rather does the 
 State presuppose a consciousness of Eight, — a Eight 
 which it is its main task to protecVC The error of 
 regarding the State as the source of Eight, is shared by 
 most politicians. One party of them derives the institu- 
 tion of Eight from the governing Power, and the other 
 — as if to turn the conception upside down — derives it 
 from the People in the political sense of the term, as 
 the governed classes in contrast to the governing class. 
 Both views are erroneous. The origin of Eight Hes 
 outside of the State; and this is so not merely in 
 reference to its supernatural origin through the Divine 
 ordinance, but in respect of its natural genesis through 
 the national Will. This Will is not the will of the 
 people as a component part of the State, but of the 
 people as that natural union which is the foundation of 
 the State. The State presupposes the principle of Eight ; 
 but it presents, at the same time, the necessary comple- 
 
THE VARIOUS SOUECES OF EIGHT. 37 
 
 tion of Eight. They have both a supernatural and a 
 natural origin in common ; they rest at once upon the 
 order of God, and upon the will of man as the member 
 of a nation.* 
 
 B.— THE VARIOUS SOURCES OF RIGHT. 
 
 12. Conviction of the People ; Legislation ; Science. 
 
 The genesis or unfolding of Eight out of the spirit of 
 the People, is an invisible process. Who would under- 
 take to follow the ways in which a Conviction arises 
 among a people — how it germinates, grows, shoots forth, 
 and unfolds itself ? Those who have undertaken to do 
 so, have mostly started from mistaken notions. Some 
 supposed that such Convictions were communicated to 
 the people from without, by the instruction of learned 
 men. Others thought of the matter in this way : that 
 what some one somehow did among the people, others 
 imitated ; and when these at last formed a majority of 
 the people, by the power of Custom the people came to 
 
 ^ [The Romans here likewise followed a very sound view of Right. The 
 ratio naluralis qiiasi lex qucedam tacita (L. 7, pr. D. de bon. damn. 48, 
 20), to which Paulus carries back the succession of descendants, is God's 
 world-order, in accordance with which the generations of men relieve and 
 succeed each other. The jus gentium contains the common international 
 order of Right among the Nations. Both of these are more universal than 
 the individual State and the individual People, as on the other side the 
 particular Rules of Right in more limited circles {lex civitatis, jus pro- 
 prium peregrinorum, etc.) appear more narrowly limited both in their 
 sphere and origin. And as there is a conviction of Right outside of the 
 State, so the State again as an ethical organism is not to be merged 
 whoUy in Right, although Right is its immanent law. The barren State 
 of Right, of which the moderns dream, contains an abstraction that was 
 alien to the conception of the Romans. — Rudorff.] 
 
38 THE OEIGINATION OF EIGHT. 
 
 imagine that this ought just to be so. By such fanciful 
 conjectures, attempts have been made to bring the 
 hidden process to light, and to substitute for the incon- 
 ceivableness of the invisible the convenience of a common 
 tangible fact. On the other hand, those who held less 
 materialistic views have, at the best, been able only to 
 make probable some unconnected points in the path 
 whose connection as a whole remained unexplored. 
 
 What is visible to us is only the product, Eight, 
 as it has emerged from the dark laboratory in which 
 it was prepared, and by which it became real. It may 
 assume, when it thus appears, a threefold form : — (1) 
 as the immediate Conviction of the members of the 
 People, revealed as such in their actions ; (2) as Law ; 
 and (3) as the product of Scientific Deduction. The 
 organs which thus give a visible form to Eight, are 
 the special Sources of Eight. As such they may be 
 designated (1) Immediate Conviction of the People ; (2) 
 Legislation ; and (3) Science. 
 
 13.^^ational Conviction and Customary Eight. 
 
 The Conviction of the People, as reilected in the 
 Consciousness of its members, is the first of the modes 
 in which Eight • arises, because it stands nearest to the 
 primary source rf^all human Eight, and is immediately 
 connected with it^ The complete externalization of this 
 Conviction, is effected by the members of the people 
 acting in conformity with their conviction of Eight, and 
 thus recognising it in practice. This usage or practice 
 by the individuals, owing to its being founded upon a 
 common conviction, is uniform in similar circumstances. 
 ■pit has thus the property of a common practice or Custom; 
 
CONVICTION AND CUSTOMARY EIGHT. 39 
 
 and hence the Eight that has arisen in this form is called 
 Customary EighttT 
 
 The share which Usage has in connection with the 
 origination of this form of Eight, is frequently repre- 
 sented so that Eight is said to arise out of Custom : an 
 opinion which agrees with the materialistic notions 
 already mentioned as to the genesis of the views of the 
 People. The true view is just the reverse. Usage is 
 only the last fact of the process, by which the Eight, 
 which has arisen and is living in the members of the 
 people, completely externalizes and embodies itself. The 
 influence which Custom has upon Conviction, only 
 amounts to this, that the Conviction may be brought by 
 it into distinct Consciousness and so confirmed. This 
 may be made plain by an illustration. It is a doctrine of 
 Eight that in the transfer of property, a mere agreement 
 between the previous owner and one who is about to 
 become the owner in virtue of this contract, does not of 
 itself suffice, but that a further act, such as the actual 
 dehvery of the thing into possession, must supervene. 
 Now the principle of Eight is exhibited in the con- 
 tinuous usage, which determines in all cases that one 
 who could refer only to such an agreement, is not yet 
 held to be the owner. Such a usage or Custom, may 
 contribute to the certainty and security of the principle 
 of Eight, but it certainly did not originate it, for the usage 
 would be entirely devoid of right in itself but for the 
 antecedent principle on which it is grounded.^ 
 
 ■ [Or Consuetudinary Right, from consiietvdo, custom.] 
 2 My view that the Custom arises out of the jural Conviction, and no 
 the latter from the former, is directly contrary to the hitherto prevailing 
 opinion, and has been objected to by some. — The maintenance of the old 
 error, rests upon the continued confusion of the question of the origin of 
 Customary Right with the question of its Knowableness. It becomes 
 
40 THE ORIGINATION OF EIGHT. 
 
 14. (Legislation : Law and legal Right ; Statutes ; 
 Observances. 
 
 To the supreme Power as the organ in which the 
 universal or common Will personifies itself, the authority 
 is given to execute that wilL? This function as a mode 
 of activity, constitutes the Government. It may in 
 consequence become necessary with reference to certain 
 points, to establish expressly what is to be regarded as 
 the Common Will, in order to make the action of the 
 Government more readily harmonize with it, and to 
 secure the subjects of the Government against possible 
 arbitrariness. For the executive function rests upon a 
 knowledge of the Common Will ; and this Knowledge 
 therefore lies within the vocation of the Government, 
 whether that Will is expressly declared or not. It may 
 thus come to appear desirable that the supreme Power 
 should declare beforehand what shall be held to be vahd 
 as the Common Will, and consequently what shall be its 
 criterion as a Government in any particular relation. 
 And this may be done by observing certain special 
 forms prescribed by the Constitution. /This second 
 function of the Supreme Power is what constitutes 
 Legislation. The legislative expression of the Common 
 
 knowaUe by Usage (§ 16) ; and it may be said that it is only presented 
 as an object to the knower in practice. [Bethmann - Hollweg (Chil 
 process, S. 30, n. 7, 1864) refers to the fact that the Conviction of the 
 people viewed as Customary Eight, upon which Hugo and Savigny were 
 lei to lay the most weight in opposition to the exclusive emphasis of statu- 
 tory Law, appears completely as an original source of Eight only in the 
 Germanic Systems. The Roman Eight, although bom as regards its matter 
 from the spirit and practice of the people, was, as regards its form, 
 developed in harmony with the high culture of the earliest period, under 
 the authority of the Government and the Jurisprudence of the Pontifices. 
 
 — RUDORFF,] 
 
LEGISLATION AND LEGAL EIGHT. 41 
 
 Will is Law ; and the Eight which arises in this form, 
 is Legal or Peomulgated EightIS 
 
 It is to be expected that the Legislator shall actually 
 express in the Law the common Conviction of the 
 Nation, under whose influence he may be acting. In 
 this relation he may either receive into his Law an 
 already established view of Eight, or he may take up a 
 conception of Eight that is only in the process of being 
 formed, and embody it in a law. Some political con- 
 stitutions seek to realize this idea by bringing in the 
 necessity of referring any proposed Law to the judgment 
 of a distinct Council, or by requiring the consent of certain 
 members of the People to its enactment ; and if they do 
 not thereby attain a guarantee of the conformity of the 
 Law to the national Conviction, which it is not possible 
 to guarantee, yet they so far tend to prevent the opposite 
 issue of falling into contradiction with the national views 
 of Eight. When a Law has been finally enacted, its 
 validity cannot be made to depend on an investigation of 
 its actual agreement with the Will of the people. Such an 
 investigation would presuppose the existence of a higher 
 Power, which would accordingly be the legislative Power ; 
 and then the same question would arise in relation to it. 
 Whatever is therefore established by a Law in the con- 
 stitutional way, becomes valid as right ; and it is to be 
 regarded as the Common Will, not on the ground of its 
 matter, but on account of the form of its expression. 
 
 Laws have been often regarded as the only source of 
 Eight ; or at least it has been held that under perfect 
 conditions of Eight, they are the only mode of originating 
 rights. This view may well appear strange to any one 
 who has even a very limited insight into the way in 
 which Eight arises. But on account of the prevalence 
 
42 THE OEIGINATION OF EIGHT. 
 
 of the view, many have become accustomed to call every 
 jural proposition a Law, and every mode of Eight a 
 product of Legislation. It has thus come to be thought 
 that a perfect state of Eight is only to be attained by 
 all the modifications of Eight being expressed in Laws. 
 This view is contrary to the facts of experience, as might 
 be shown, for example, by the history of the Eoman 
 Law.^ Further, the impossibility of such a legislative 
 undertaking must be apparent, which at the best 
 could only be attempted in the case of a people whose 
 national life was about to expire. At any other stage 
 of a people's history, along with the completest Legis- 
 lation, there will always be a mass of jural Convictions 
 unpromulgated, which will maintain and develop them- 
 selves as such, and thus hold a place of their own. 
 
 A State consists of a number of lesser associations, 
 which are homogeneous with the including whole, and are 
 only different from it by being in themselves special 
 members of that whole. Such are the incorporated 
 Towas and Village Communities. These Corporations 
 exhibit each a State on the small scale. The function 
 of a wise Government in relation to them is, on the one 
 side, to vouchsafe to them that degree of independence 
 in the administration of their own internal affairs with- 
 out which their existence in the condition necessary for 
 the welfare of the State is inconceivable ; and, on the 
 other side, the State has to guard against such an 
 isolation of them, and such a degeneratins; of their in- 
 dependence, as would result in the weakening of its own 
 existence as a whole. This latter possibiKty was the 
 
 ' And tliis may te done without laying too much weight on the well- 
 known saying of Tacitus (which is only to be taken in a limited sense) : 
 Comiptissima republica plurimm leges. 
 
LEGISLATION AND LEGAL EIGHT. 43 
 
 danger which threatened the States in former times ; at 
 the present day, in consequence of the greater centrahsa- 
 tion of the power of Government, the danger lies in the 
 opposite extreme of too great a limitation of the Corpora- 
 tions. The administration of the smaller community 
 having to be conducted under the supervision of the 
 general political government of the State, there arises in 
 it the same need as in the wider sphere of establishing 
 rules on certain points by express regulation, so that 
 they may be observed in it. With reference to such 
 matters as bring the administration of the smaller Com- 
 munity into immediate contact with the interest of the 
 State, the Legislation will properly proceed directly from 
 the State itself. But with regard to those special interests 
 in the Community, which affect the State as a whole 
 only in so far as the Community is a member of it and 
 shares in its weal or woe, the institution of the requisite 
 regulations will be properly left to the Community, 
 under the general supervision of the State-government. 
 Thus there arises in these Communities an actiAdty 
 analogous to the political legislation, and which in con- 
 trast to it has been designated the Autonomy or Self- 
 government of the Community. The regulations thus 
 constituted are called Statutes. This Autonomy, 
 moreover, does not express itself in overt regulations 
 only, but it is also embodied in silent, unexpressed 
 forms in practice ; and in these forms they are called 
 Observances. 
 
 The formation of such Corporations is not limited to 
 the local Communities. The impulse to animate and 
 complete the great organization of the State by means of 
 particular unions in certain special directions, has brought 
 forth other Corporations, such as the Universities and 
 
44 THE ORIGINATION OF EIGHT. 
 
 Guilds. And these have developed within them an 
 activity similar to that of the other Associations. 
 
 Finally, Christianity has instituted the Church as a 
 body which is placed side by side with the State, and is 
 found in a peculiar relation to it. In virtue of its 
 special character as a religious Society, the Church is in 
 certain relations dependent on the State, and in other 
 relations it has a complete independence. This inde- 
 pendence of the Church and its Government, is of a 
 different and higher kind than that of the other Corpora- 
 tions, and it claims a certain parity with the State. 
 This is shown by the fact that the Church has ascribed 
 to it not merely Autonomy, but the power of Legislation. 
 Like the State, the Church likewise includes lesser 
 Corporations in itself; and to these also a certain 
 Autonomy belongs in relation to the Legislation of the 
 Church, as in the case of the secular Corporations and 
 the State. But the question of an Autonomy of the 
 Church as such within the relations of the State, can only 
 arise in reference to those points of her existence in which 
 she is dependent on the State, and which therefore fall 
 within the sphere of the political Legislation ; and it 
 arises in fact, only where the State may leave the 
 institution of the relevant regulations to the Church. 
 
 157 Scientific and Juristic Right. 
 
 The jural propositions, which together make up a 
 system of national Eight, stand in an organic connection 
 with one anotherT^ This organic connection of these 
 propositions is explained primarily by the fact of their 
 arising out of the spirit of the same people, the unity 
 of the source extending also to what has been derived 
 
SCIENTIFIC AND JUEISTIC EIGHT. 45 
 
 from it. This fundamental relation, however, does not 
 exclude the possibility of a dissonance intervening so as 
 to disturb the harmony of the several parts included in 
 the system of Eight, since the spirit of the people is 
 always exposed to disturbing influences, which may be 
 compared to the maladies that attack the health of the 
 body. Such disturbances most readily arise from unskil- 
 ful exercise of the function of Legislation, as when the 
 legislator substitutes an arbitrary interference for what 
 would otherwise be desirable energy of action, or when 
 he confounds a call for rapid redress with a demand for 
 the improvisation of new laws. In this fundamental 
 relation, the Eight of a people may be compared to its 
 Language, which, as regards the source and connection of 
 its elements, likewise rests upon certain principles and 
 rules contained unexpressed in itself, and which it is the 
 function of science to bring to light and to unfold in 
 consciousness. 
 
 The property of Eight, in virtue of which its several 
 propositions thus form the members of an organic whole, 
 is further grounded upon the Eationality that belongs to 
 its nature. And, as we have already seen (§2, 8), the 
 rationality and the manifoldness of the propositions of 
 Eight, are related to the fact that by the principle of 
 Eight, the conditions of Inequality in human life have to 
 be subjected to the principle of Equality, without, how- 
 ever, being abolished by it. The formation of Eight 
 thus arises out of the continual antagonism of unequal 
 relations, and the continual subjection of them to the 
 control of Eight. From this process the various institu- 
 tions of Eight arise. Thus, the jural propositions that 
 find expression regarding Property, Obligations, and such 
 like, assume various forms ; and the same holds true of 
 
46 THE OEIGINATION OF EIGHT. 
 
 the more special propositions and institutions by which 
 tliese are constituted in further details. They assume 
 these differences in form, because the inequalities of the 
 existing relations react upon the expression of the prin- 
 ciple of jural freedom, and because Right is thus exhibited 
 as equality modified by inequality. Hence Eight, although 
 springing from Freedom, is conditioned by the natural 
 necessity of its objects ; and it thus becomes rational. 
 Its propositions accordingly attain systematic connection, 
 as mutually conditioning and presupposing each other ; 
 and it is possible to reason from the existence of the one 
 to that of the other. We may take as an illustration 
 these two jural propositions : (1) that the Owner of a 
 Thing has an immediate dominion over it, by which fact 
 his relation is distinguished from that of a person to 
 whom something is only due from another, and to whom 
 therefore only the action of that other person, and not 
 the thing itself, is subject; and (2) that the Owner of a 
 Thing can vindicate it from any one who withholds it 
 from him. These two propositions are not indifferent to 
 one another, so that the one could be modified ^^ithout 
 the other being affected. On the contrary, they neces- 
 sarily hang together; they presuppose each other, and 
 thg^one may be deduced from the other. 
 j_It is the function of Science to arrange the proposi- 
 tions of a system of Eight in their organic connection, 
 and to make them comprehensible as arising out of and 
 conditioning one another. And the aim of its method 
 is to trace the genealogy of the several propositions in 
 question, up to their first principles, and then to show 
 how to descen^from these principles down to their 
 furthest offshoots^ This process unfolds and brings into 
 clear consciousness those elements of Eight which lay 
 
SCIENTIFIC AND JURISTIC EIGHT. 47 
 
 hidden in the spirit of the national system, and which 
 may not be brought to light either in the immediate 
 Conviction of the members of the people, nor by their 
 actions, nor even in the utterances of the Legislator. 
 They thus visibly arise for the first time as the product 
 of a Scientific Deduction, ^cience accordingly becomes 
 the third source of Eight; and the Eight to which it 
 gives rise is Scientific Eight, or from its being evolved 
 by the activity of the Jurists, it may be called Juristic 
 
 ElGH'gT' 
 
 The latter expression may have a still wider mean- 
 ing. Juristic Eight may be understood as signifying the 
 Eight which lies specially in the consciousness of the 
 Jurists, and which is professionally represented by them. 
 This holds more particularly in the advanced periods of 
 the history of a people when the system of Eight has 
 lost its earlier simplicity, and when in consequence it 
 can no longer be known by all the members of the 
 people with anything like completeness. In the course 
 of time this applies to by far the greater portions of all 
 the departments of Eight. Even Customary Eight, 
 apart from the peculiarities of particular places and 
 districts, will likewise thus come to live and develop 
 itself pre-eminently in the consciousness of the Jurists, 
 as the members of the people most completely cognizant 
 of rights, and most constantly occupied with jural 
 interests in virtue of their profession. The Jurists thus 
 become the natural representatives of the rest of the 
 people in matters of Eight ; and in this sense Customary 
 Eight may also be included in Juristic Eight. ' Scientific 
 Eight,' as the less ambiguous expression, is therefore to 
 be preferred as the proper designation of that Eight 
 which has Science as its source. 
 
48 THE OEIGINATION OF EIGHT. 
 
 16. The Means of Knowing Customary Right. 
 
 Every jural proposition which is entitled to be recog- 
 nised as such, must have arisen through one or other of 
 the three Sources of Eight : Immediate Conviction of 
 the People, Legislation, or Science. The practical interest 
 in the investigation and knowledge of these sources, lies 
 in the fact that it is by reference to them that the 
 answer must be found to the question, whether a certain 
 proposition is a proposition of Eight ? The problem 
 thus arises : how to determine the conditions under which 
 the existence of a proposition of Eight is to be accepted 
 as established by means of these sources of Eight ; or 
 in other words, how are we to know and recognise the 
 existence of any proposition of Customary, Legal, or 
 Scientific Eight, as such ? — This knowledge must be 
 drawn from Documents if the Eight in question has been 
 put on record ; and in this case it is called ' Written 
 Eight ' (Jus scriptum). But if the Eight is not con- 
 tained in special Documents, or cannot be derived with 
 certainty from any Eecord, the knowledge of it must be 
 obtained from other sources. 
 
 As regards Customary Eight, the most natural 
 Source of Knowledge is the Usage in which the jural 
 Conviction of the people is actively manifested and 
 reflected. This Usage consists of actions which contain 
 an application of the Eight in question. It may either 
 be extrajudicial or judicial, as in the form of practice 
 or adjudication {usus fori). An example will illustrate 
 this distinction. Thus, it may be asserted that it is 
 the Customary rule of Eight in a city that the outgoing 
 tenant must leave a dwelling-house entirely in the same 
 condition in which he received it ; and accordingly that 
 
MEANS OF KNOWING CUSTO'MAEY EIGHT. 49 
 
 it must be newly painted and decorated if it was 
 delivered to him in that state. Now the jural principle 
 here concerned, may have been so maintained in practice 
 that the tenants may have come to an understanding to 
 act upon it without its having been settled by a legal 
 process ; and in this case the Usage is extrajudicial. 
 But it may also happen that a tenant having refused 
 to comply with this custom, may have been compelled to 
 implement it in consequence of a judical sentence ; and 
 in this case judicial Usage is superadded to the customary 
 recognition of the Eight in question. 
 
 It may then be asked, what must be the condition of 
 the Usage in order that it may form a valid and reliable 
 means of obtaining a Knowledge of Customary Eight ? 
 In this connection it becomes practically important to 
 determine the view that should be held regarding the 
 relation of Custom to Eight.^ We determine the principle 
 upon which this question may be answered thus : the 
 Usage will possess the required condition whenever it 
 can be shown to be the outcome of a common Conviction 
 of the people.^ And for this two things are requisite. 
 (1) The Usage in the case must have the character of a 
 matter of Eight, and be of the nature of a jural necessity. 
 Hence in the example referred to, if the tenant was led to 
 understand that the restoration of the house in a certain 
 condition was only a matter of liberality or mere good- 
 will, the act could not be regarded as included under 
 Usage of Eight. (2) The Usage must be constantly 
 
 1 Cf. § 13. 
 
 ' According to the view which has hitherto been generally received, 
 and which we have rejected above (§ 13), the question would have to be 
 put thus : What must be the condition of a Usage in order that it may 
 produce a Customary Right ? No principle can be assigned by which 
 this question could be answered. 
 
 D 
 
50 THE OEIGINATION OF EIGHT. 
 
 repeated, and must return in similar relations in the 
 several cases to which the Usage of Eight applies; in 
 other words, it must have the character of an established 
 habit or Custom (longa consuetude). This quality of 
 the Usage has the effect of removing the possibility that 
 the agreement of the acts in question may be accidental, 
 although they may happen at different times and may be 
 performed by different persons. The supposition that 
 this Usage may not be founded on an inner unity of 
 jural Conviction, thus becomes so extremely improbable 
 that it must be rejected. However, it is never to be 
 forgotten that custom or observance has authority only 
 to the extent that we may infer from it to the existence 
 of a position of Eight, but it is not to be considered 
 that the custom itself makes the Eight. No importance 
 is therefore to be laid upon it, if it is otherwise certain 
 that there is no Eight which can have obtained manifes- 
 tation in it. Thus, if a certain proposition is decidedly 
 contrary to the Divine commandments, or to prin- 
 ciples of Eight which admit of no exception, we cannot 
 recognise it as a jural proposition, even although a long 
 and constant custom may be referred to in support 
 of it.' 
 
 Further, Custom is not the only means of obtaining 
 Knowledge of Consuetudinary Eight. The testimony of 
 credible persons regarding its existence, and credible 
 indications of it in fact, may prove it, or at least may 
 contribute to establish it. 
 
 ' This is enunciated in a Constitution of the Emperor Constantine(L. 2, C. 
 Quffi sit longa consuetude ? 8, 63) : ' Consuetudinis ususque longaevi non 
 vilis auctoritas est, sed non usque adeo sui valitura momento, ut rationem 
 vincat aut legem.' A case which may have given occasion to this utter- 
 ance is referred to farther on in § 20. 
 
MEANS OF KNOWING LEGAL EIGHT. 51 
 
 17. The Means of Knowing Legal Right. Criticism ; 
 Interpretation. 
 
 The most important Source of Knowledge in regard 
 to Legal Eight, is the Text in which it is composed, 
 that is, the Document in which it is laid down. This 
 means of Knowledge is, on the one hand, the simplest, 
 and the most accessible to all ; and thus far this form of 
 Eight appears at the iirst glance to have a great advan- 
 tage over any other. But, on the other hand, the 
 ascertainment of Legal Eight involves certain peculiar 
 difficulties, and in order to overcome them a special 
 Knowledge of matters is required, which is not possessed 
 by alL It is a mere illusion to believe or maintain that 
 by merely being brought into the form of Laws, Eight 
 is thus made more certain, more indisputable, or more 
 universally knowable. 
 
 The difficulties connected with the determination of 
 Legal Eight arise (1) partly from the condition of the 
 terms of the Law, as the special means of obtaining 
 Knowledge of it; and (2) partly also from the nature 
 of Legal Eight itself. 
 
 1. As regards the former ground of difficulty, it is to 
 be noted, first of all, that the Genuineness or Authenticity 
 of the "Words in question, may be doubtful. The terms 
 of the Law referred to, may have been falsified ; and the 
 older the Law is, the greater is the possibility of this 
 being the case. Such doubts may have reference to the 
 whole document, as well as to its individual words 
 and propositions. The scientific activity, which aims at 
 reaching certainty regarding these points, must proceed 
 by investigation of the Authenticity and Genuineness of 
 the Document in question ; and this investigation may 
 
52 THE OKIGINATION OF EIGHT. 
 
 have regard to it as a whole, or to any of its parts. 
 Criticism is therefore a function of the jurist. And it 
 becomes necessary in the case of all the jural propositions 
 transmitted by documentary means, and for all titles of 
 Eight that have to be proved by documents. It thus 
 relates to the whole range of the subjects of Legal 
 Pdght. 
 
 Again, the Meaning of the Words in question, may be 
 doubtful. These Words are the witnesses for the will 
 of the legislator ; and this will must be derived from 
 them. But the legislator may have used Words which 
 admit more than one sense. This inconvenience will 
 occur more frequently, according as the framer of the 
 Law may be wanting in power over the requisite language, 
 or as the process of legislation is more or less hurried 
 through. And even the most careful attention will not 
 always avail to prevent such difficulties arising. The 
 examination and elucidation of the meaning of the Words 
 that embody the will of the Legislator, is called Intee- 
 PEETATiOM". Such Interpretation rests upon scientific 
 principles. It is therefore to be distinguished from 
 the process by which the meaning of a former Law is 
 determined by that of a later one, or by reference to 
 the common Conviction of the people, which is what is 
 properly called 'Legal Interpretation.' ^ This Legal Inter- 
 pretation is the process by which a new jural proposition 
 in Legal or Customary Eight, relating only to the Law 
 under interpretation, is so unfolded that in any practical 
 application it shall be regarded as having been already 
 contained in the said Law. — The basis of this properly 
 
 ^ Legal Interpretation is divided into ' Atlientio Interpretation ' and 
 ' Usual Interpretation.' The former is furnished by the Legislator, the 
 latter is derived from the Conviction of the people. 
 
MEANS OF KNOWING LEGAL EIGHT. 53 
 
 scientific Interpretation (which may be distinguished from 
 ' Legal ' Interpretation as ' Doctrinal ' Interpretation) is 
 twofold. 1st. It is founded upon the Meaning of the 
 Terms employed. The sense must be derived from the 
 words used ; it must be conform to them, for the Law is 
 just the will of the Legislator as expressed in his words. 
 If it could be shown that the will of the Legislator was 
 really something quite different from what he has ex- 
 pressed, his will would not be valid, because it has 
 not been truly expressed, nor would the Words be valid 
 because they would not really contain the will of the 
 Legislator. 2nd. In addition to the Words, the Inter- 
 pretation has also to consider other circumstances by 
 which the will of the Legislator is made clear. Such 
 are the Principles of Eight which he has otherwise 
 recognised, and from which the determinations in ques- 
 tion may be deduced. When a certain rendering of his 
 Words would show a divergence from these recognised 
 principles, and such a divergence is either inconceivable 
 or at least cannot be referred to any probable occasion or 
 cause, it is to be rejected. Further, the purpose which 
 the Legislator had in view in enacting the Law, and 
 in general all the circumstances which may have in- 
 fluenced his will, and from which an inference may be 
 drawn to that will, have to be taken into account. 
 The ascertainment of the sense of a Law by reference to 
 its terms and the rules of language, is called ' Grram- 
 matical Interpretation ; ' that which is derived from other 
 grounds is ' Logical Interpretation.' These are often 
 regarded as two entirely independent modes of Inter- 
 pretation, of which the one can be applied without the 
 other, so that recourse cannot in any way be had to 
 logical Interpretation, if the grammatical Interpretation 
 
54 THE OEIGINATION OF EIGHT. 
 
 gives a relevant and adequate sense. But this view over- 
 looks the fact that the determination of the question as 
 to whether the sense is ' adequate ' already goes beyond 
 the sphere of the so-called ' Grammatical ' Interpretation. 
 The truth of the matter under consideration may be 
 put thus. If there is nothing uncertain or unambiguous 
 in the terms of the Law, and if there is no impos- 
 sibility or manifest untenableness in the way of accept- 
 ing a certain definite meaning, then it is not legitimate 
 to represent the Will of the Legislator as doubtful, on 
 the ground of probabilities drawn from other sources ; for 
 it would then in fact become impossible, even by the 
 most careful choice of expressions, to secure the intended 
 meaning of a Law against arbitrary renderings. The 
 rule which a Eoman Jurist lays down for the inter- 
 pretation of the Dispositions of a testator : ' Cum in 
 verbis nulla ambiguitas est, non debet admitti voluntatis 
 qusestio,' * is also to be applied to the interpretation of 
 Laws. But it is not therefore the less true that a 
 separation of grammatical and logical Interpretation, in 
 the sense indicated above, is not to be admitted. 
 
 Finally, doubts may arise as to whether a certain 
 Law has valid existence at present. Laws continue to 
 have an external existence in the Eecord by which they 
 are made known, even after they have been repealed. 
 Thus no one can learn from the mere Document in which 
 a Law is contained, whether or not it has been set aside 
 by a later Law. It is not enough, therefore, to know 
 only the particular Law, by which Eight is established 
 in a certain relation ; we must also be acquainted with 
 all the Laws in that sphere, in order to avoid the error 
 of regarding a repealed Law as still valid. The case is 
 ' L. 25. 1 D. De lege, iii. 32. 
 
MEANS OF KNOWING LEGAL EIGHT. 55 
 
 otherwise with regard to Customary Right ; for if any 
 jural custom changes and another jural conviction takes 
 its place, the external fact of the former usage will also 
 then cease to exist. 
 
 2. The other main difficulty in the way of obtaining 
 knowledge of Legal Eight, springs from the very nature 
 of Legal Eight itself. A Law becomes a fact by its 
 constitutional promulgation and publication ; and this 
 takes place by means of a definite act at a particular 
 moment of time. The Law becomes valid and applicable 
 at the date of its publication, unless some later date is 
 laid down by the Legislator at which it will come into 
 operation, thus instituting a certain vacatio legis after the 
 publication of it ; or, conversely, the validity of the Law 
 may be carried back to an earlier date. This latter 
 relation is silently implied in the fact that a new Law is 
 to be regarded as giving an authentic interpretation of 
 the former Law, its expressions having to be taken as if 
 they were already included in that prior Law. It has 
 therefore to be applied from the date of its validity 
 wherever an application of the former Law would have 
 occurred ; and thus those Cases which would have fallen 
 under the former Law, have now to be decided by it. 
 
 Hence, whatever may be the date at which the opera- 
 tion of a Law may begin, — whether it be the date of the 
 actual publication of it, or sooner, or later, — the Law can 
 only be applied to the cases that arise after that date, 
 and not to earlier cases. Simple as this Eule is, its 
 application may sometimes become difi&cult, from un- 
 certainty as to whether a certain case is to be reckoned 
 as belonging to the facta futura or preterita. And this 
 holds especially when the case in question is not entirely 
 limited to a definite point of time, but extends through a 
 
56 THE OEIGINATION OF EIGHT. 
 
 certain period, during the currency of which the opera- 
 tion of the Law begins. For example, a Law may alter 
 the time during which a certain Eight can be acquired or 
 lost ; and the question will then emerge as to how its 
 application bears upon those cases in which the currency 
 of their relative periods had already begun, but was not 
 yet ended. Or, again, the Law may change the effects 
 of a certain fact which have not yet become complete, or 
 even may not as yet have appeared. The decision of 
 such questions will turn mainly upon the nature of the 
 facts to be dealt with ; but there are two Eules which 
 must guide us with reference to them. These Eules are, 
 first, that any fact which is not yet completed cannot 
 be called a factum prceteritum ; and second, that Eights 
 already acquired, even although the time for their 
 exercise has not yet come, are not to be infringed by 
 the application of a new Law. 
 
 \ 18. The Means of Knowing Scientific Right. 
 
 It still remains for us to deal with the Knowledge 
 of Scientific Eight. A judge has very frequently to 
 adjudicate upon relations regarding which no express 
 determinations can be found in the contents of either 
 Customary Eight or Legal Eight. In these circum- 
 stances it is Science, as the third Source of the Know- 
 ledge of Eight, that has to furnish the propositions by 
 which he has to decide. These, as scientiiic propositions, 
 do not rest upon external authority ; they are valid only 
 in so far as they follow with inherent necessity from the 
 principles of the existing System of Eight, and they 
 accordingly claim the same validity as the propositions 
 expressly included among the Convictions of the people 
 
MEANS OF KNOWING SCIENTIFIC EIGHT. 57 
 
 or contained in the Laws. Hence, knowledge of this 
 species of Eight is to be derived from internal principles, 
 and particular rules cannot be laid down with any com- 
 pleteness regarding it. The whole Science of Law must 
 furnish guidance to Knowledge of Scientific Eight. Every 
 Jurist, and every Judge in so far as he is a jurist, should 
 regard it as falling within the sphere of his vocation ; 
 and all juristic literature is auxiliary to it. The agree- 
 ment of the most distinguished Jurists, gives rise to a 
 presumption in favour of the scientific truth of a propo- 
 sition ; and that presumption is strengthened by the fact 
 of its continuous application in the Courts. But neither 
 the wide diffusion of a certain view nor mere practice of 
 it, has any absolute authority in and by itself ; they must 
 both yield to better knowledge of the truth where a 
 Scientific Eight is in question. Further, both Customary 
 Eight and Legal Eight, in so far as their principles are 
 capable of being determined on internal grounds, must 
 have their foundation established by Science. It is only 
 by this mode of treatment that we become conscious of 
 their essential principles, as well as certain of having a 
 correct understanding of what is immediately presented 
 in the forms of Popular Eight and Law. 
 
 C— THE CHANGES OP RIGHT. 
 19. Change throughout the Historical Movement of Right. 
 
 As a People changes throughout its whole sphere of 
 life in the course of time, the same condition holds true 
 of its system of Eight as a branch of that life. ^3ight is 
 not fixed or stable at any particular time. It develops 
 with the Peopklf It attaches itself to the national 
 
58 THE ORIGINATION OF EIGHT. 
 
 character at its different stages of culture ; and it adapts 
 itself to the changing wants and requirements of the 
 People. 
 
 This process of change, does not so alter the subjects 
 of it that they in any way cease to be identical and the 
 same. The People at the beginning and at the end of 
 their historical career, are the same people, though they 
 may present differences here and there. In like manner, 
 their system of Eight becomes different, and yet it is 
 always the Eight of the same people. Not only do the 
 jural propositions which contain at any one time the 
 Eight of a people, form members of an organism, but the 
 system as a whole, maintains this organic quality in its 
 progressive movement. The successive relations in the 
 sequence of the constituent positions of the system of 
 Eight, are also organic. This may be expressed by 
 saying, in a word, that Right has a history. 
 
 The most external characteristic in this historical 
 alteration of Eight is, that its determinations advance 
 from an original simplicity to greater multiplicity and 
 variety. This process goes hand in hand with the 
 expansion of the relations and requirements of the 
 national life, and therefore with the more manifold 
 development of the material which reacts upon Eight, 
 and which Eight has to master and control. And in 
 connection with this process the fact comes in, that the 
 peculiar and distinctive spirit of a people gradually 
 opens to the influence of more general thoughts that 
 reach beyond the self-enclosed character of the people. 
 
 '[^For, all culture consists in the reception of what is 
 Universal, and which, in becoming wedded with .the 
 Particular, overcomes its natural crudeness and isolatiomj 
 
 ' This condition becomes visible in the sphere of Eight as 
 
HISTORICAL CHANGE OF EIGHT. 59 
 
 its initial state of rigid, national peculiarity is gradually 
 modified and mitigated by more general elements operat- 
 ing upon the consciousness of Eight. This process of 
 change, will obtain different forms among different peoples, 
 and it may be retarded or hastened by particular circum- 
 stances. In the Eoman Law the distinction of the jus 
 civile, and the jus gentium, illustrates this ; and among 
 the Germanic peoples the reception of the Eoman Law 
 has the same significance. The most essential influence 
 determining this process of change, lies in the position 
 held by the people as a constituent member of the whole 
 of mankind. Every people has its own share assigned 
 to it in the purpose that is to be worked out by the 
 succession of all the peoples ; and in the sphere of Eight 
 it has also to perform its part of the common task. 
 Any one people will therefore approach the goal of its 
 destination by the different stages of evolution through 
 which its form of Eight passes. 
 
 The process of the progressive formation of Eight, 
 ought to keep pace with the development of the people. 
 It will never fail of its end if the free movement of the 
 three Sources of Eight operative in it, is properly main- 
 tained. But this co-operative relation may be disturbed ; 
 as happens, for instance, if the effort is made to weaken 
 the influence of the immediate Conviction of the people 
 or of Science, and to put the whole power over the 
 determination of Eight into the hand of the Legislator. 
 In that case, one or other of two possible results can 
 hardly be avoided, — either Eight will fall behind the 
 requirements of the time, or it will be put out of its 
 proper connection with the life of the people by sudden 
 innovations in the Legislation. And in either case it will 
 cease to be in harmony with the national development. 
 
6 . THE ORIGINATION OF EIGHT. 
 
 The proper movement of Eight will, however, be such 
 that it can only become manifest to those who can survey 
 the whole of it as an uninterrupted process. On the 
 other hand, it will appear as stagnant or unprogressive to 
 any one who does not feel as a member of the people, 
 but occupies individually an attitude of antagonism 
 towards it, in the maintenance of his own isolated pur- 
 poses. And this will hold whether he praise the system 
 of Eight on account of this very stagnation, until he is 
 suddenly awakened from his dream ; or denounce it, 
 because it does not pander to his individual and private 
 interests. 
 
 20. Abrogations of Particular Propositions and Rights. 
 Antinomies. 
 
 We have regarded Eight, on the whole, as subject to 
 change. If we now look back at the several details of 
 Eight, it will be seen that the process of alteration goes 
 on through the rise of new manifestations of Eight. 
 These may assume one or other of two relations to the 
 previously existing modes of Eight ; they may either 
 allow them to continue to exist along with themselves, 
 or they may abrogate them in whole or in part. 
 
 Every abrogation of a jural proposition involves the 
 rise of a new proposition, along with which the former 
 can no longer exist. Hence a jural proposition can be abro- 
 gated only by reference to some of the Sources of Eight. 
 The truth of these positions, may be doubted when it is 
 found that a mode of Eight falls out of use in virtue of 
 the popular Conviction — desuetudine obliteratur — or is 
 repealed by a Law which introduces nothing new in its 
 place. In such cases it may appear that there is the 
 
ABEOGATIONS OF RIGHT. 61 
 
 abrogation of a right without the origination of a new 
 right. In reality, however, a certain new Eight also arises 
 in these cases by the act of abrogation, for the very fact 
 that the old position is no longer to be valid constitutes 
 a new, jural position. Besides, the opposite of this would 
 be unthinkable ; for although every change is not an 
 act of abrogation, yet every act of abrogation is a change 
 of Eight. 
 
 yEach of the Sources of Eight has abrogative po^^ 
 not only over the jural forms that may have taken rise 
 through it, but also in relation to those that may have 
 been brought forth by either of the other two. This 
 power, however, belongs to it only in so far as it is able 
 to bring forth a form of Eight identical in extent with 
 that to be abrogated, and therefore capable of completely 
 covering it. Thus, suppose that in a certain country it 
 is established, either by Customary or Legal Eight, that 
 a creditor cannot effectively bind a debtor by promise to 
 pay more than five per cent, of interest at most, with the 
 further provision that no particular deviation from this 
 rule shall be permissible. Then if any one tried to show 
 that in a particular town of that country there existed a 
 jural conviction, confirmed by long usage, that more than 
 five per cent, was allowed, his allegation would have no 
 force, because a particular right of this kind is impossible 
 so long as the wider jural position exists along with 
 prohibition of any special deviations from it. The wider 
 position can only, be abrogated by a custom of Eight in 
 common, and not by a peculiar observance.^ 
 
 The abrogation of a form of Eight, may be effected in 
 such a way that the intention to do so is expressly 
 declared, as when it is done by a Law that repeals it. 
 ^ L. 2. C. Quae sit longa consuetude, viii. 53. Cf. § 16, note. 
 
62 THE OEIGINATION OF EIGHT. 
 
 But the abrogation may also be effeqted silently, by the 
 mere introduction of a new form of Eight, along with 
 which the right in question cannot exist. It is time 
 which here decides between the two jural positions. 
 The older right must yield to the newer right. Jus 
 posterius derogat priori. The incompatibility of the two 
 rights under consideration is, however, always presup- 
 posed. Thus, in the case of a particular right existing 
 in a country, when the Common Eight is altered, generally 
 or in reference to that particular point, but without the 
 intention of abrogating any particular differences that 
 may exist, the particular right will still continue in its 
 own sphere as a deviation from the later position, just as 
 it may have existed formally as a deviation from the 
 earlier Common Eight. 
 
 It may happen that two jural positions occur, espe- 
 cially in the written Law, that absolutely exclude each 
 other, and with respect to which it cannot be directly 
 determined which of them is to be regarded as the one 
 that is valid, and by which the other is abrogated. In 
 such a case we are presented with an Antinomy ; the 
 two jural propositions annul each other, and neither of 
 them is valid on account of their mutual contradictori- 
 ness. Here the Eight that is determined by Science, 
 comes in to supply the want. The jural position 
 required can only be derived from Scientific Eight, and 
 it must therefore be obtained by the application of 
 internal principles in a scientific way. Thus, in that 
 part of the legislation of Justinian which is compiled 
 out of the writings of many of the Eoman Jurists, certain 
 divergent views appear, and the fact seems not to have 
 been observed by the authors of the Justinian compila- 
 tion. Now, it is sometimes not possible to determine 
 
ANTINOMIES OF EIGHT. 63 
 
 at once which of the recorded opinions is to be taken 
 as the received doctrine. Under these circumstances, 
 the contradictory passages are to be viewed as if they 
 did not exist ; and the question is to be regarded as 
 left undecided by the written expressions of Eight. We 
 have therefore to determine the question at issue by 
 reference to that Source which always remains open for 
 our guidance, even when the authority of the popular 
 Conviction and of the Legislator fails us. 
 
THE SPHERE OF EIGHT. 
 
 A.— SYSTEM OP THE RELATIONSHIPS OP RIGHT. 
 
 21. Nature of the Relations of Right. 
 
 The function of Eight, viewed as to its object, may be 
 indicated generally by saying that it has to determine 
 the relations of men so that these relations shall become 
 Eelations of Eight. The Eelationships of Eight are thus 
 relations of men to one another, and they may be 
 appropriately called juridical or jural relations. But 
 as man stands in the sphere of Eight as a person, we 
 may at once determine the conception of tlrese relations 
 more definitely : they are Relations of Fersons as such to 
 one another. 
 
 Hence it is immediately apparent that the human 
 relationships do not enter in their full extent into the 
 sphere of Eight, nor into the series of the relations of 
 Eight. For the notion ' Person,' rests upon an abstrac- 
 tion, and thus it does not embrace the whole being of man, 
 but only includes directly the fact that he is a subject 
 of will, while his other qualities are only indirectly taken 
 
THE EELATIONSHIPS OF EIGHT. 65 
 
 into account, according to their nearer or more distant 
 connection with it. This abstraction accordingly extends 
 to those relationships of men which have to admit of 
 njuch modification and discount, in order to be viewed 
 as mere relations of Persons as such, or to be taken 
 merely as jural relations. Thus, suppose a man has risen 
 from a protracted illness, and in order to pay the bill 
 of his medical attendant, to provide for the urgent 
 wants of his family due to his recent incapacity for 
 work, and to procure the means of beginning his busi- 
 ness again, that he goes to a well-disposed neighbour 
 whom he has helped in his own better times to pro- 
 sperity, and asks a loan, and obtains it at the usual rate 
 of interest ; — how much must we not leave out in con- 
 sidering this complex relation in order to get to its 
 purely jural form ! What an effort of abstraction is 
 required to view as equal and the same in right, the 
 relation of the borrower in this case and that 
 of a rich man who raises capital merely in order 
 to add thousands to his possessions by a new specu- 
 lation ! And yet the two relations are jurally 
 and legally identical in fact, as regards the right 
 involved. 
 
 It is further evident that by the introduction of the 
 most varied human relationships into the sphere of Eight, 
 the relations of Eight themselves are not thereby multi- 
 plied, since it is possible that relations which are entirely 
 different in their human details may yet coincide in one 
 and the same relationship of Eight. This holds for the 
 same reason as that no new Eight arises from the dis- 
 covery of new species of plants and animals. For since, 
 as regards Eight, these aU fall under the one identical 
 conception of Things, the relationships of Eight under 
 
 E 
 
66 THE SPHERE OF EIGHT. 
 
 which these objects are controlled, do not thereby become 
 more numerous. 
 
 Under the reservation of greater or less modification 
 already indicated, there is no kind of human relationship 
 — assuming only that it is constituted by relations to other 
 men — that is excluded from the possibility of receiving 
 a juridical form and becoming a relationship of Eight. 
 The farther, however, the ground of the relation lies from 
 the principle of Eight, the more important will any other 
 modification of it become, and the more readily will the 
 relationship be withdrawn from the control of mere jural 
 forms. 
 
 If we now look at the Eelationships of Eight by 
 themselves, it cannot be denied that the conception is 
 somewhat indefinite and fluctuating. No relationship 
 of Eight of the same kind, looks entirely the same as 
 another, when we take their particular circumstances into 
 account. And if we leave these circumstances out of 
 consideration, the mere mingling of the jural elements 
 themselves will continually give rise to new combinations. 
 
 There is something seductive in following this mode of 
 viewing Eight in these relationships, just as there is in 
 being rocked upon the changing billows rather than seeking 
 the solid hard land. It appears conformable to the living 
 nature of things, to build the system of Eight upon relation- 
 ships, rather than upon the crude and hard conception of 
 mere Eights. But the fluctuating nature of the relations 
 of Eight, is a difficulty in the way of any definite deter- 
 mination of them.^ Where then shall the system of 
 
 1 This may be illustrated by an example, and I intentionally choose the 
 case that Savigny has given in his System des heutigen RSmischen Rechts 
 (i. § 8), because his celebrated work may be considered as containing the 
 System in which the jural Relationships are predominant. — Two brothers 
 
DIVISION OF JUKAL RELATIONS. 67 
 
 the Eelationships of Eigl/t, find its close but in those 
 particular Eights which / constitute the unity of this 
 multiplicity, otherwise so; indeterminable by itself ? It 
 is indeed just these pa^rticular Eights which in their 
 combinations, form the /relationships of Eight. In point 
 of fact, the idea of adapting the relationships of Eight 
 as a thoroughgoing guide in the exposition of Eight, has 
 not yet been carried through ; resort has been again had 
 at certain points to the Eights themselves, although 
 these have then been often designated Eolations of 
 Eight. 
 
 All this is not to be understood as questioning the 
 fact that there is a system of jural Eelationships. There 
 is such a system; but in following it, that indefinite 
 tendency of certain modes of pursuing the relations has 
 to be guarded against, as leading far beyond the real 
 aim of the system. 
 
 23. Division of the Jural Relationships. Private Right ; 
 Public Right ; Ecclesiastical Right. 
 
 Eelationships of Eight are relations of Persons to one 
 another. These relations are infinitely varied and mani- 
 fold, but they gather into certain organic complexes 
 
 are subject to the paternal power ; the one gives a loan to the other ; they 
 become heirs of their father ; and the receiver of the loan pays it back. 
 Can it be asserted that he has paid what he was not owing, and may he 
 reclaim it under the condictio indebiti ? (L. 38, D. De cond. indeb. 12. 6). 
 Let us assume that one of the two brothers has been emancipated before 
 the death of the father ; or that he has his pecvMum, and he has not 
 retained it ; or that only one of them has become heir ; or neither of 
 them ; or that the receiver of the loan had not yet paid ; or that it was 
 not a loan, but another transaction which they concluded, etc. In all 
 these case's the relation of Bight would become different ; and it is 
 evident that this may go on ad infinitum. 
 
C8 THE SPHEEE OF EIGHT. 
 
 determined by the differences of the persons among 
 whom they subsist. The System of the Eelationships of 
 Eight, consists in the organization of • these relations 
 according to the qualities proper to the Persons that are 
 the subjects of them. 
 
 The differences among men, are not all differences of 
 Persons ; and hence they do not all give rise to really 
 different jural Eelationships. Personality is a common 
 characteristic which is thinkable as subsisting equally in 
 the most different individual circumstances. Indeed it is 
 just the prominent manifestation of the principle of 
 equality, as of that which belongs to all men notwith- 
 standing their individual inequalities. As a Person, I 
 find myself on an equality with my fellow-men, however 
 they may otherwise differ from me in respect of talent, 
 disposition, strength of body, or capacity of mind. 
 
 But there subsists a distinction among men, which 
 affects the personality itself ; and it thereby produces a 
 differentiation of Persons. This holds only of those qualities 
 which rest upon the natural characteristics of all men, and 
 which therefore give to their wills a determinate direc- 
 tion. Man is determined by his nature not only to act 
 as an Individual, and to enter as such into relations with 
 other Individuals, but also as the member of a Whole, 
 to enter into relations with the other similar members of 
 the same Whole. Neither of these determining qualities 
 of his nature absorbs the other ; rather is it the case that 
 neither of them can subsist without the other. All life 
 depends on the union of individual and social activity, or 
 of existing for oneself and also for others. 
 
 The Personality of man, and consequently his jural 
 Eelationships, are different, according as he is viewed in 
 one or other of the following capacities : — 
 
PEIVATE INDIVIDUAL EIGHT. 69 
 
 I. As an Individual ; 
 
 II. As a Member of an organic Society, which is — 
 
 A. The Family ; 
 
 B. The People ; or 
 
 C. The Church. 
 
 According to these distinctions, the jural Eelationships 
 are divided by reference to the Property of Individuals, 
 to the Family, to the Public institutions of the People, 
 and to the Church ; and Eight itself is divided into — 
 
 I. Peivate Eight (including the Eights of Property 
 and of the Family) ; 
 
 II. Public Eight ; and 
 
 III. Ecclesiastical Eight. 
 
 I. PRIVATE RIGHT. 
 
 INDIVIDTIAL RIGHT. 
 
 23. Man as an Individual. Things and Powers; Property 
 and Obligations ; The Legal Estate. 
 
 The jural Eelationships in which man stands as an 
 Individual, relate to the external goods which he needs 
 ,for his existence. These goods — the earth, with what it 
 produces and what man makes thereof — are primarily 
 destined for the supply of the wants which he has as 
 an individual, and their destination only receives a wider 
 application by his becoming a member of the various 
 social combinations. The division of these goods among 
 individuals, and the rightful formation of the relations 
 
70 THE SPHEEE OF EIGHT. 
 
 into which men enter in connection with them, require 
 regulation ; and this is the first task of Eight. 
 
 The principle of Eight does not deal with these ex- 
 ternal goods in all their natural multiplicity, but it brings 
 into prominence their universal character as destined 
 for man and his wants. This common characteristic is 
 expressed by the word Thing. A Thing is what is uncon- 
 ditionally subjected to the wants of men and absolutely 
 at their disposal. A Thing has no independent destina- 
 tion in itself apart from man. Mediately, however, the 
 Powers belonging to man are superadded to these external 
 goods, by becoming connected with them through the 
 activity put forth in acquiring and using them. 
 
 These goods are capable of being regarded from a 
 jural and from an economic point of view ; and these 
 two modes of regarding Things, are very different. The 
 latter is directed towards the means of procuring them 
 in such quality and quantity as will best correspond 
 to our wants, and therefore it aims at improving and 
 multiplying these external goods in themselves for our 
 use. Eight has only to consider their subjection under 
 the Power of man, as a fact emanating from the opera- 
 tion of our jural freedom ; or, more particularly, it has 
 to take account of their subjection under the "Will of a 
 person, and with regard to the position which others 
 in virtue of their jural freedom occupy towards them. 
 Whether this subjection happens to be economically 
 advantageous or not, does not alter the decision of the 
 question of Eight in an individual case, although 
 economic considerations will certainly have an influence 
 on the formation of the general positions of Eight. Such 
 considerations bear upon requirements to which the for- 
 mation of the institutions of Eight must conform. 
 
PEIVATE INDIVIDTJAL EIUHT. 71 
 
 Man subjects a Thing to himself in order to satisfy 
 the wants of his external hfe by means of it. He thus 
 acquires power over Things. This power would by itself 
 be a mere accidental fact, but when it is obtained by 
 Eight, and is recognised as pertaining to the Person, it 
 becomes a rightful power, and constitutes a Eight to the 
 object. If I have a thing under my physical control, I 
 possess it, and it serves my ends so long as I have the 
 natural capability of maintaining this power over it ; yet 
 so far this is merely a contingency of fact, and it is at 
 best precarious in itself. But when it is declared by 
 Eight that the Thing belongs to me, this gives me a 
 rightful, and not merely a physical, power over it. Thus 
 it is made independent of the accident of possession, so 
 that the thing is in my power even when not under my 
 immediate physical control. This jural Power constitutes 
 Property, which involves the right to demand a Thing 
 from any one who withdraws and withholds the actual 
 power over it, from its proprietor or Owner. 
 
 It may so happen that it is not important for us to 
 have a Thing in that complete power and possession 
 which is indicated by the term ' Property,' as a partial 
 and limited power over it may suffice for our require- 
 ments. For example, I may wish only to enjoy the fruits 
 of a thing for my lifetime, or to make some other merely 
 partial use of it ; and this use, as not including the total 
 destination of the thing, may coexist with a right of 
 property in it on the part of another person. And this 
 being so, it is likewise desirable to obtain for this partial 
 use the same advantage as proprietorship gives, namely, 
 the capability of making our right good against any one 
 who may encroach upon it. It would manifestly be an 
 excessive condition if I required to get a road to my 
 
72 THE SPHERE OF EIGHT. 
 
 fields, that I should have to acquire the land that lay 
 between them and the highway as my own property, when 
 it might be of no other use to me ; and when the number 
 of the people grows to be proportionate to the extent 
 of the available external goods, such a condition becomes 
 impracticable. It would be just as inconvenient, should 
 I wish to secure to my widow the enjoyment of a certain 
 property for her lifetime, that I could only do so on 
 condition of taking it away from my natural heir and 
 making her proprietor of it, so that I would only have a 
 choice of giving more or less than was really my wish. 
 Thus have arisen Eights to things which are not actually 
 in the proprietary possession of the persons entitled to 
 the benefit of them. A constituent part of the Property 
 is here given to another ; and thus far it is separated 
 from the ownership of it. These Eights have this in 
 common with the property which is their source, that they 
 are effective not merely against the Owner of the property 
 who has granted them, but against all other persons. 
 
 The rise of these Eights in Things alongside of Owner- 
 ship proper, as Eights in the Things of others, presup- 
 poses an advanced condition of the human race. It implies 
 that the accumulation of men in the same place has 
 diminished the superabundance of external goods, and 
 induced circumspection in the economic utilization of 
 them. It is but a further stage of this development 
 which expands the relationships of Eight that relate to 
 man as an individual, beyond the immediate Eights to 
 Things, and carries on this process of extending Eights 
 through a wider range. 
 
 A condition of human society may be imagined in 
 which the Eight of Ownership completely suffices by 
 itself for the jural Eelationships in respect of external 
 
PRIVATE INDIVIDUAL EIGHT. 73 
 
 goods. Every one lives with his family apart on his 
 separate piece of land, and it supplies him with every- 
 thing that his simple wants demand. The auxiliary 
 powers which he needs are furnished by his own family, 
 which is perhaps increased by the command of subjugated 
 service. The human race soon advanced beyond these 
 simple conditions. The individuals stepped out of their 
 isolation, and a social intercourse arose directed towards 
 procuring for the one the use or results of the powers of 
 the other; and this proceeded upon a free standpoint, 
 and was therefore reciprocal in its operation. As 
 individuals had not all the goods, whether things or 
 powers which they were in need of, at all times in 
 their control, there thus arose the necessity of reciprocal 
 assistance, and this condition was forthwith put under 
 jural protection. Whoever did not possess certain goods, 
 but had, on the other hand, a superfluity of others, 
 would seek to procure the former by giving the latter in 
 exchange for them. He would enter into relation with 
 those who had what he wanted, and wanted what he had, 
 either dealing directly with those who had a superfluity 
 of what he wanted, or indirectly by means of persons 
 who might undertake the business of commerce and thus 
 form the medium of this mode of intercourse. Or if 
 this did not suffice, he would ask the owner of the 
 goods he needed, or of such as would be the means of 
 procuring them, to entrust them to him on condition of 
 his restoring them again. In this manner Obligations 
 arose. They would be Obligations for performances or for 
 the doing of certain things on demand, giving rise to 
 Eights called Claims. The sphere of Obligations, would 
 be further widened by the possibility of infringements of 
 Eight among persons independent of each other. The 
 
li THE SPHERE OF EIGHT. 
 
 infringer or violator of Eight, would be laid under Obliga- 
 tion to give compensation for the damage which his 
 illegitimate act had wrongously inflicted. 
 
 Jural Eelations of this kind increase in importance as 
 human wants become more varied and refined, and the 
 more widely the range of personal Freedom extends. 
 Obligations will thus arise the more frequently that the 
 need of the Powers of others is realized, and the more 
 rarely that these powers can be commanded by a control 
 of other Persons. 
 
 The sum-total of all those Eights of a Person which 
 relate directly to external goods, constitutes the whole 
 linearis of his Legal Estate.^ The Property is the 
 Estate at rest and in stability; the Obligations are the 
 Estate in movement and change. This distinction 
 explains how, in the progress of the jural development, the 
 Eight of Obligations obtains always greater importance 
 from Property being always drawn more into movement 
 by the social intercourse. And thus there comes a time 
 when it may appear necessary to check the advance of 
 this movement by careful maintenance of the principle 
 
 1 [The German term VermSgen is here rendered Estate as the best tech- 
 nical ecjuivalent for it in English. The term in German indicates all the 
 powers or means embodied in the whole Estate, as including both the 
 actual Property and Obligations belonging to the individual. Savigny 
 adopted it in this technical sense in his System, and in a Note he explains 
 it thus : ' The German designation of this conception of Eight ( Verm6- 
 gensrecht) is the most appropriate that could be found to express it. For 
 by it the nature of the subject is immediately expressed as the poioer 
 accruing to us by the existence of these Eights ; it is what we have the 
 power to do or are able (vermSgen) to perform by means of them. The 
 nature of the subject in question is less appropriately rendered by the 
 Eoman term bona, which has passed into the modern Eomanic languages, 
 and which primarily connotes the idea of the well-being that is obtained 
 by such power, or the advantage which it brings to us ' {System, i. 140). 
 
FAMILY EIGHT AND EELATIONS. 75 
 
 of Property against the excessive strength of this social 
 tendency. The history of a People, like that of mankind 
 at large, may be compared to a stone rolling down a 
 hill ; the velocity of its motion becomes at length immea- 
 surably increased. Eetardation by some check of the 
 movement in question, may thus become necessary for 
 the preservation of life, when the otherwise accelerated 
 motion may become but nearer approach to destruction. 
 
 FAMILY RIGHT. 
 
 S4. Man as the Member of a Family. Relation of the 
 Family to Private Right and to the State and the 
 Church. 
 
 The Family, viewed as a natural union, formed inde- 
 pendently of the Will, does not lie as such within the 
 domain of right ; it is properly a society of Men rather 
 than of Persons. It appears at iirst sight even to be 
 opposed to a jural formation of its special relationships, 
 which are not thereby excluded from naturally organizing 
 
 M. Guenoux, in accordance witli Savigny's remark, renders VermSgen by 
 Mens. Avoir is used by Ahrens in the same application. Mr. Justice 
 HoUoway represents Vermogen by Potentiality, and VermSgensrecht by 
 Potentiality' s-law (!). Mr, Eattigan keeps to the term Property (p. 177), 
 which is manifestly inadequate. 'Estate,' as used above in connection 
 with the term 'Means,' represents the idea of Saviguy and Puchta with 
 stiificient accuracy. It is thus taken in the wide sense in which it is 
 defined in the Bankruptcy Act of 1856, as including 'every kind of pro- 
 perty, heritable or moveable, wherever situated, and all rights, powers, 
 and interests therein capable of legal alienation, or of being affected by 
 diligence or attached for debt' (19 & 20 Vict. c. 79, § 4). 'Estate' is 
 therefore used here as 'bona' in the Eoman Law, for all that enters 
 iinto a Universal Succession or 'hereditas.' Cf. Dig. 16. 208 ; 37. 1, 3. — 
 ,Tk.] 
 
T6 THE SPHERE OF EIGHT. 
 
 themselves. The Family embraces the whole existence 
 of man, combined and undivided, in itself ; for the essence 
 of Marriage, which is the foundation of its relationships, 
 consists in the union of the two spouses in order thence- 
 forth to live one life. Thus the jural conception, which 
 aims at regarding man as the subject of Will, and at 
 making this abstract quality dominate over the other 
 characteristics of human nature, seems to contradict the 
 nature of this relationship, as it is certain that a purely 
 jural connection of the members of the Family with each 
 other, would destroy the true life of the Family. 
 
 But just because this natural association affects the 
 whole existence of man, it is not to be kept apart from the 
 sphere of Eight. Not that Eight is to interfere in the 
 ongoings of this circle of life, with usurpatory force ; on 
 the contrary, it is the Family which presses into the 
 domain of Eight with the full energy of a system that 
 is at once whole and firmly united in itself. And thus 
 it comes directly under the influence of Eight. 
 
 External goods primarily are given to men as indi- 
 viduals ; but their jural convictions cannot exclude the 
 Family from the destination of the means of the Estate, 
 as it is to the Family that the multipKcation of mankind 
 and the continuance of the race is entrusted. This is 
 already involved in the oldest declaration of Eight : ' Be 
 fruitful, and multiply, and replenish the earth, and subdue 
 it.' And the systems of Eight of all nations recognise 
 the fact, that when men acquire property for themselves, 
 they also acquire it for their families ; it is only the jural 
 form in which this thought is expressed that is different. 
 Among every people we find this exhibited in the insti- 
 tution of Inheritance, as the Eight of Succession, in 
 accordance with which the Estate of a deceased person 
 
FAMILY EIGHT AND RELATIONS. 77 
 
 passes to his survivors. The Estate remains for the 
 family, and it is only the way in which this thought is 
 carried out that varies. In many of the systems of 
 Eight, a more or less arbitrary settlement of the Succes- 
 sion is allowed on the part of the Testator ; and thus the 
 natural order in the transmission of the Estate, or parts 
 of it, to the family, may be superseded. 
 
 The relations of the Estate to the Family, in addition 
 to the Eight of Inheritance, include the relationships 
 of property between Husband and "Wife, and between 
 Parents and Children. Nor are these the only grounds 
 upon which the Family enters into the domain of Eight. 
 The Family forms the connecting link between the Indi- 
 vidual and the union of the People in the State ; and the 
 prosperity of this union as a whole, depends on the 
 integrity of the life in the Family. For ' if a man know 
 not how to rule his own house, how shall he take care of 
 others ; and how will one who does not reverence the 
 correction of a father,' learn that habit of obedience upon 
 which all jural order rests ? Thus Marriage as the 
 foundation of the Family, and the relation between 
 Parents and Children, must become jural relationships, 
 because they belong to the conditions of the jural order 
 of life, and because Eight must incorporate in its own 
 domain aU that is necessary for the security of its own 
 existence. And as the Family stands in this relation to 
 the State, it likewise stands in a similar relation to the 
 Church, forming in like manner the connecting link 
 between it and the Individual. The Family has thus to 
 train its members for the society of the Church, as well 
 as for that of the State. 
 
 We have distinguished a twofold jural relation of the 
 Family ; the one connects it with the rights of property 
 
78 THE SPHERE OF EIGHT. 
 
 and obligations, and therein lies the signification of its 
 bearing on Private Eight ; and the other connects it with 
 the State and the Church. This latter relation therefore 
 carries us into the further divisions of the jural relation- 
 ships embraced under Public Eight and Ecclesiastical 
 Eight. 
 
 ,XqU 
 
 II. PUBLIC RIGHT. 
 
 25. The Union of the People and the Jural Form of the 
 State ; Constitutional Right and International Right. 
 
 The union of the People, like that of the Family, is a 
 natural formation. It is therefore a union of Men as 
 such, and not merely as Persons ; in other words, it is 
 not a Jural Eelationship. But there is this great differ- 
 ence between the two, that the latter union, so far from 
 involving in it anything opposed to the nature of Eight, 
 is such that the consciousness of Eight is rather 
 developed and maintained by it. The natural union of 
 the People thus immediately assumes a jural form ; it 
 becomes an association of Persons, and as such we call it 
 a State. The State has its natural basis in the union 
 of the People, and what it superadds to this natural fact 
 is the jural form which the elements of the whole people 
 as a nation assume. The members of the People become 
 citizens of the State ; they are then regarded as Persons, 
 and, in this particular connection, as Public Persons. 
 The spiritual unity of the People is embodied in a 
 Sovereignty. The natural inspiration of the members of 
 the People, moving through the national spirit and will, 
 takes form ia rightful obedience to the Sovereignty. 
 And the force of the spirit of the People throws itself 
 
PUBIJC CONSTITUTIONAL EIGHT. 79 
 
 into the jural form of the Power of the State, which is 
 exerted both inwardly and outwardly. 
 
 The Public Eight, which gives jural form and character 
 to the relationships in which man finds himself as the 
 member of a State, thus refers either to the internal 
 relations of the State or to its external relations. 
 
 INTEENAL CONSTITUTIONAL RIGHT OF THE 
 STATE. 
 
 Evolution of Forms of Government; Patriarchalism ; 
 Aristocratic Republicanism; Democracy; Monarchy; 
 Feudalism. 
 
 In its direction inwards, Public Eight determines first 
 of all, the Constitution of the State; and this part of 
 Public Eight is usually called Internal Political 
 Eight. The Constitution of the State consists in the 
 form given to the Organs in which the public activity is 
 carried on, and in their relations to one another. The 
 public activity within the State is, throughout its whole 
 range, made up of a process of commanding and obeying ; 
 the Will which commands and is to be obeyed, is the 
 Common Will upon which the political union rests, and 
 this Will determines and limits all command and obedi- 
 ence in the State. The organ of command is the 
 Sovereign ; the organ of obedience is the Citizen, but the 
 Citizen only obeys the whole State in the Sovereign, and 
 in virtue of his being himself represented in it, he so far 
 constitutes the Sovereignty. 
 
 Political Constitutions are distinguished mainly accord- 
 ing to the form in which the sovereign power is 
 embodied. The origin of their differences may be con- 
 
80 THE SPHERE OF EIGHT. 
 
 ceived ia this way. The Nation has arisen out of the 
 Family, the expansion of the latter and its separation 
 into distant branches having been the preparation for the 
 former. So long as the consciousness of the family 
 relationship prevailed throughout its various branches, 
 the chief Head of the Family continued alone to be 
 recognised as such, and his authority had still no jural 
 character. As this consciousness disappeared, the recog- 
 nition of authority did not pass away with it, but it 
 began to assume a jural nature ; the Head of the Family 
 was no longer regarded merely as the family head by 
 the more remote branches, but was recognised as the 
 Head of the People and their Sovereign, and with this 
 fact the People became a political Body. Thus the 
 Patriarchal Constitution was formed. It was akin and 
 similar to the state of the Family, out of which it imme- 
 diately arose. It was thus the oldest form of a political 
 Constitution, and the others have been developed out of 
 it. The Head of that family, which was regarded as the 
 original stem of the whole people, was recognised in the 
 partriarchal system as the supreme Head or Chief of all 
 the families. But this most distinguished family might 
 again become divided into several families, or it might 
 become extinct, and then there would arise several claim- 
 ants for the first rank. The Government would thus pass 
 into the hands of several families and their heads ; and in 
 this way an Aristocratico-republican form of Constitution 
 would arise. These ruHng families then appear as the 
 specially active members of the Commonwealth, the rest 
 of the people forming only an adjunct to them ; and they 
 are kept as such in a passive position. This advance out 
 of the early simplicity of the Patriarchal Constitution is, 
 at the same time, the first impetus to a movement which 
 
PUBLIC CONSTITUTIONAL EIGHT. 81 
 
 may be retarded but cannot be entirely kept in check. 
 The key-stone of the old building is taken away with the 
 removal of the one head, and the whole structure gradually 
 crumbles down. The Aristocratic Constitution stands 
 closest externally to the earlier patriarchal form, when 
 the ruling families are able to resign themselves to tlie 
 position of entrusting the actual leadership to one indi- 
 vidual, along with whom the other Chiefs (proceres) have 
 only a potential share in the Government ; or if they 
 have an active interest in it, it is still limited and 
 subordinate. But when once the charm of natural 
 subordination has been broken through, the result can 
 only be that the feeling of equality with the ruling head 
 wUl always tend to bring about greater limitation, of his 
 power; and if the supreme Euler does not voluatarily 
 yield to this tendency, a struggle between him and the 
 aristocratic element will inevitably ensue. If the aristo- 
 cratic influence triumphs, the Eepublican Constitution 
 will obtain a complete form in the supremacy of the 
 ruling families ; and in connection with it the ruler will 
 appear only as the Chief Magistrate. And now the pre- 
 eminence in privilege of the ruling citizens, as a class, 
 compared with the rest of the people, comes glaringly 
 and sensitively to light. This also has to give way to 
 the pressure upwards, to which the Constitution owed its 
 existence. The great body of the people will continue 
 in the state of political passivity assigned to them by 
 the Nobles, only so long as the relations which have 
 produced or favoured it are efficient enough to keep the 
 Commons submissive to it, or to resist their striving 
 after equality. From this pressure on the part of the 
 Commons, a mixed Constitution may arise which will 
 establish a balance between these elements of the State, 
 
 F 
 
82 THE SPHERE OF EIGHT. 
 
 but it may also issue in a pure Democracy as govern- 
 ment by the Commons. Such a Democracy will, in fact, 
 be modified by the natural influences of wealth, educa- 
 tion, and calling, which continually shoot forth new 
 aristocratic elements. In the long run. Democracy 
 delivers the people either into the hands of a foreign 
 conqueror, or there arises within its own bounds amid 
 the troubles and unrest of the many-headed government, 
 a single ruler whom the usurpation upon which his 
 power is grounded, transforms into a tyrant and an 
 autocrat. 
 
 The ancient world was specially the theatre of the 
 alternating changes and movements of these Political 
 Constitutions. In modern times, under the supremacy 
 of Teutonic races. Monarchy has obtained the preponder- 
 ance, as a form of Government which has neither a 
 patriarchal nor an usurpatory origin. The advantage 
 which ought to be derived from this decided preponder- 
 ance of the Monarchical Constitution is, that the question 
 regarding the form of the sovereign power now assumes 
 a subordinate relation, while the more important question 
 regarding the nature of the power itself and its exercise 
 properly and characteristically takes the first place. 
 
 The most general characteristic of Monarchy as a form 
 of Government, is that the idea of the sovereignty is 
 embodied in the prince, so that all sovereign power is 
 regarded as proceeding in its action from him ; and if 
 others exercise this power, they only do it in his name, 
 whether its exercise is entrusted by a contract, or 
 proceeds under some other jural form. 
 
 But this does not yet exhaust the idea of what is 
 contained in a Monarchy ; for so much may be conceived 
 in connection with the Chief Magistrate of a Eepublic 
 
PUBLIC CONSTITUTIONAL EIGHT. 83 
 
 who exercises the sovereign power in the name of all the 
 citizens, while the various other officials are regarded as 
 his commissioned representatives. The peculiarity of a 
 Monarchy is that the prince himself exercises the 
 sovereign power in his own name ; and it is implied that 
 he possesses this authority as a right which belongs to 
 him. The fact that he thus exercises the sovereign 
 power in his own name, distinguishes a monarch from a 
 republican magistrate and from any official ; the fact that 
 this authority belongs to him as a right, further distin- 
 guishes him from any such official, and from a usurper ; 
 and the fact that this right has a purely jural origin, 
 distinguishes him from the patriarc^ial ruler. 
 
 Monarchy is, therefore, the sovereign power embodied 
 as the right of a Person. The nature of the right is to 
 be determined from this essential characteristic of it, and 
 hence it is eminently a Public Plight. It therefore 
 belongs to the prince as a Public Person, and only in so 
 far as he can be regarded as a member of the State in 
 connection with its other members. The relationship 
 between a Monarch and his Subjects, is a reciprocal 
 relationship ; it is not conceivable without the recogni- 
 tion of the Subjects as being also Public Persons and 
 possessors of public rights. We may express the essence 
 of this relationship as consisting of a reciprocal allegiance 
 and fidelity in the interest of the function which has to 
 be discharged by the State; it implies allegiance and 
 fidelity in the government by the prince, and allegiance 
 and fidelity in the obedience of the subjects. The 
 question then comes to be how to find the proper jural 
 form for this constitutional idea, so as rightly to embody 
 it and provide for its protection. 
 
 The Feudal nexus supplied such a jural form. It was 
 
84 THE SPHERE OF EIGHT. 
 
 constituted by the relationship of property, which, how- 
 ever, included a personal connection between all those 
 who were embraced in this relationship by the tenure of 
 feudatory service. The constitution founded upon Feu- 
 dalism was a free constitution, if by ' free ' is meant one 
 in which the ruler, even in his political position, is not 
 merely a ruler, nor the subject is merely one under his 
 authority, but both are at the same time qualified in 
 their respective positions by their own rights. The 
 vassal had a right to fidelity in the person of his over- 
 lord ; and as this bond was carried on in analogous 
 collateral relationships, the lowest member of the Com- 
 monwealth stood in a political connection with its Head, 
 and was at least indirectly free. The world has out- 
 grown this political vesture, with its mingling of the 
 ideas of public and private right, and its application of 
 the conception of property to public relations. The 
 feudal system was suitable only for the simpler states of 
 society, and for more limited requirements than those 
 which we inherit at the present day. 
 
 The constitutional problem now is, how to bring the 
 relation between princes and subjects into a form of 
 right so as to maintain its jural purity, and yet to lay 
 aside certain traditions connected with the family and 
 with private right. This jural form must be adapted so 
 as to embrace the whole elements of the relationship. 
 It is therefore a form of dominion over persons ; and in 
 particular, it is the dominion which may belong to a 
 Public Person over public persons, so that its character 
 shall only relate to this quality of the persons in ques- 
 tion. But no dominion over persons can be an absolute, 
 unqualified dominion ; for in this it is specifically distin- 
 guished from the dominion over things. The Subjects 
 
PUBLIC CONSTITUTIONAL EIGHT. 85 
 
 therefore stand as persons under the monarchical Power ; 
 and consec[uently they are regarded as possessing rights. 
 And, on the other hand, the Monarch has not merely 
 rights over his subjects, but duties towards them as such. 
 The limit of power in the monarchy which this involves, 
 may be expressed generally by saying that this power is 
 only the sovereign power, and the obedience of the 
 subjects to the monarch is obedience to the sovereignty. 
 
 A remarkable and yet a very prevalent mistake is to 
 give the character of a private right to this relationship. 
 This is the common error of two great political parties, 
 otherwise directly opposed to each other. The one party 
 gives the character of a private right to the right of the 
 monarch, by regarding it either as analogous to the 
 paternal power, or as a form of guardianship, if not even 
 of ownership. The other party treats the right of the 
 subjects as a private right, by ascribing it to every 
 individual as such, and so regarding the individuals by 
 themselves, or in any associations organized by them at 
 will, as entitled to offer resistance to the government, and 
 to take an active part in its functions. Public freedom 
 being thus transformed into private arbitrariness, comes 
 to be suppressed when it opposes an energetic govern- 
 ment ; and when it rises against a weak government, it 
 triumphs at the cost of that real freedom which is 
 inseparable from the well-being of the whole community. 
 Public rights belong to persons only as members of the 
 Commonwealth, and in it as such. Nothing is more 
 essential to the full prosperity of a State than that this 
 feeling of the citizen with regard to his public right be 
 kept continually alive, and that in his exercise of these 
 public rights, it be not suppressed by the tendency to 
 individual isolation. In the greater States, the public 
 
86 THE SPHERE OF EIGHT. 
 
 Corporations serve this purpose in so far as the citizen 
 exercises his pubhc rights as a member of such Corpora- 
 tions, and his connection with the remoter whole is 
 thus directly maintained. These Corporations again are 
 capable of subordinate organization ; and in an extensive 
 Empire this is advisable, so that the lesser Corporations 
 may be united into greater unions, or combinations, or 
 ranks (status). By such means an assembly represent- 
 ing the whole of the citizens in the Empire, and prac- 
 tically exercising their rights, may thus really be formed. 
 
 The Sovereign Function and the Jural Order. Administra- 
 tion of Justice ; Civil and Criminal Process ; Police. 
 
 Public Eight has further to determine the function of 
 the Sovereignty, and the mode in which it has to be 
 actively carried out. The Sovereign requires assistants 
 in the performance of this activity ; and the exercise of 
 certain functions has to be assigned to them as an office 
 which they have to administer in his name. The 
 obedience of the official to the Sovereign of the State, is 
 of another kind than that of the citizen ; it is like the 
 obedience of a servant to his master. But it is also 
 limited, especially by reference to the nature of the 
 service which the official has undertaken. This becomes 
 especially important in the case of those officials who are 
 entrusted with the administration of Eight which, in 
 well-ordered monarchies, proceeds in the name of the 
 monarch, but without his immediate influence upon the 
 decision of the individual cases. 
 
 Opinions differ regarding the function of the Sove- 
 reignty and the range of its action ; or, as it is commonly 
 expressed, regarding the Ends of the State. All theories. 
 
PUBLIC CONSTITUTIONAL EIGHT. 87 
 
 however, agree in holding that the maintenance of right- 
 ful order is a function of the State ; the only question in 
 dispute, is as to whether the State has other and further 
 independent Ends. We shall look, first of all, at that 
 function which is universally recognised. 
 
 The public activity which is directed towards the main- 
 tenance of jural Order, is partly direct and partly indirect. 
 
 The activity which aims directly at realizing that 
 object, may be indicated as the application of the rules of 
 Eight to the relationships which have to be determined by 
 them. This application of right presupposes two things : 
 (1) The certainty of the jural Eules ; and (2) adjudica- 
 tion of the Eelationships in accordance therewith, so as 
 to bring these relationships and rules into harmony with 
 each other. In the former connection, it may become 
 requisite to remove uncertainty regarding the common 
 jural conviction by expressly establishing a principle of 
 Eight, This is the function of Legislation which has been 
 discussed above.' 
 
 It is the function of the judicial activity to bring the i 
 existing Eelationships into harmony with what Eight 1 
 demands. Its interference presupposes a disturbance of ' 
 the harmony of these Eelationships with Eight ; it '• 
 implies a discord between fact and justice, constituting | 
 a wrong which the judge has to remove. The actions 
 which are necessary to the attainment of this end, con- 
 stitute the Judicial Processes ; and the form, order, and | 
 signification of these Processes, are prescribed by laws ; 
 which regulate the procedure of Justice. 
 
 The Wrong by which a Judicial Process is occasioned, 
 may be either relative or absolute ; and the Process itself 
 is, accordingly, twofold. It is possible that the Wrong 
 
 1 § 14. 
 
88 THE SPHERE OF KIGHT. 
 
 may consist merely of a violation of rights whose existence 
 can be disputed generally, or only to a certain extent in 
 the Case. The performance of an act, or the failing to 
 perform it on the part of some one, is qualified by 
 another as a violation of his right in such a case ; and it 
 is only so far contrary to Eight as a right belongs to him 
 who alleges that he is injured, either generally or to the 
 extent averred, and this assertion of a right may be called 
 in question by the opposite party. Thus, if any one 
 asserts that the present possessor of a certain thing, 
 infringes his ownership of this thing by such possession, 
 or that some other one Aaolates the claim which he has to 
 a certain sum of money by refusing to pay it, a legal case 
 would arise. We may call such a disputed case one of 
 relative Wrong ; it is a wrong which assumes the appear- 
 ance of a right. The opponent who refuses to recognise 
 the claims in question, affirms that he himself is the true 
 subject of the right. There thus arises a dispute about 
 a right, which has to be decided by the judge. The 
 procedure which has for its object the decision of con- 
 troverted questions of right, and consequently the re- 
 moval of such relative wrongs, is a Civil Process. The 
 term ' Civil Process ' is usually limited to disputes about 
 private rights, but this is an arbitrary limitation. All 
 rights whose existence can be contested, and whose in- 
 fringement, therefore, bears the character of a relative 
 wrong, whether they be Private Eiglits or Public Eights, 
 have to be vindicated by means of a Civil Process, if the 
 constitution of the State has not withdrawn its protection 
 from these rights, by not recognising any authority as 
 competent to determine such disputes about them. 
 
 The wrong in question may also be an absolute wrong. 
 This is the case when it is a violation not merely of 
 
PUBLIC CONSTITUTIONAL EIGHT. 89 
 
 rights whose existence can be questioned, but of Eight 
 generally ; and as such it is a breach of the whole order 
 of Eight. Such a wrong is called a Crime. A Crime 
 presupposes two things : — iirst, that the will of the 
 doer of it has set itself in opposition to Eight, and has 
 put itself above right ; and, secondly, that certain rights 
 have been violated by his action. This second requisite 
 of a Crime as a violation of right, contains again two 
 elements : an objective element, which consists in the 
 invasion of an external sphere of right, and a subjective 
 element, which implies that the fact in question has been 
 caused by the action of the individual himself, and not 
 merely by an external influence but by the will of the 
 doer of the action. This may be otherwise expressed by 
 saying, that the violation of Eight is an injury which 
 must be imputed to him who commits it. This Imputa- 
 tion must not be confounded with the first requisite 
 essential to the crime as contained in the direction of the 
 will to the wrong ; for it may exist without this. In 
 this bearing there is a distinction to be noted, according 
 as indisputable rights are violated which affect the 
 existence of a person, or rights whose violation could 
 only constitute a relative wrong. In the former case, 
 along with the imputation the first requisite of a crime is 
 also included ; for the will of the doer of such an action 
 could not but be criminal. In the latter case, the im- 
 putation does not in any way decide about the existence 
 of the first requisite of a crime. Thus, if I take away a 
 thing from another, and thereby violate his right, this 
 violation of right may be imputed to me, although my 
 will may perhaps have not been directed to the wrong ; 
 and, therefore, this infringement of right need not be 
 regarded as a crime. 
 
90 THE SPHERE OF EIGHT. 
 
 The restoration of jural order when disturbed by the 
 Crime, takes place through the Punishment of the criminal. 
 The law of right which prescribes this punishment, and 
 which, therefore, defines crimes and their penalties 
 generally, is called a Criminal or Penal Law. It is a 
 part of the Public Eight, because it applies to man in his 
 relation to the whole community to which he has 
 opposed himself as a criminal. The judicial procedure, 
 which has for its object the punishment of the criminal, 
 and which is distinguished by this purpose from the civil 
 process, is called the Criminal Process. We find, how- 
 ever, that Criminal Law and Procedure, are not always 
 carried out in practice as far as the conception of absolute 
 wrong extends. Many a wrong which shows itself to be 
 absolute, is treated as a merely relative wrong, and is 
 prosecuted only by means of a Civil Process. This 
 divergence from the rule of Eight, may be founded upon 
 imperfection in the jural insight of the people ; but in 
 course of the development of their consciousness of Eight, 
 it will become more conformable to it. Sometimes, 
 moreover, the boundaries between these two classes of 
 wrongs, although exactly recognised in idea, are never- 
 theless dif&cult to determine in individual cases ; and 
 thus the laxer treatment of absolute wrongs as relative, 
 comes to be preferred. Or again, it may be a regard to 
 the external consequence of the wrong, when this is 
 found to be of relatively less importance, that gives 
 occasion to such a deviation from the principle by which 
 the distinction between wrongs is determined. 
 
 Thus far, account has only been taken of the judicial 
 office of the sovereign power as an activity immediately 
 directed to the maintenance of rightful order. But this 
 does not exhaust its proper functions. Order in the 
 
PUBLIC CONSTITUTIONAL EIGHT. 91 
 
 sphere of Eight, is rooted in the sense of Eight which 
 permeates the Life of the people ; and were it not main- 
 tained by this influence, the administration of Justice 
 would have but a very precarious effect. This is evident 
 when we consider that the exercise of the judicial office 
 requires men whose sense of Eight cannot be guaranteed 
 merely by the judicial institutions. But even apart from 
 this consideration, it must be admitted that if the mass 
 of the people, as the predominating majority, were in- 
 fluenced merely by the threat of coercion or of punish- 
 ment, the Courts of Justice would soon be quite inade- 
 quate for their function, and a State that had sunk into 
 such a social condition would hardly deserve to be 
 called a State. It lies, therefore, within the function of 
 the Sovereign Power to train the individuals entrusted 
 to its care to that common sense of Eight which is the 
 spiritual condition of their becoming real citizens ; and 
 consequently care must be devoted to their intellectual, 
 moral, and religious culture, without which their proper 
 civil training is impossible. In like manner, the sove- 
 reign Power has to direct its efforts towards the increase 
 of the material prosperity of the citizens, not merely in 
 so far as in their spiritual culture there lies a guarantee 
 against disturbances of the public order within the State, 
 but also because this material prosperity furnishes at the 
 same time the means required for supporting the exist- 
 ence of the State in itself, and for maintaining its position 
 in its external relations. 
 
 This care for the spiritual and material well-being of 
 the citizens, constitutes the police-functions of the State. 
 It is primarily of a protective character, for it is evident 
 that the education of the individual by means of the 
 family and the church, and the instruction communicated 
 
92 THE SPHERE OF KIGHT. 
 
 by speech or writing that emanates from individuals or 
 corporations, as well as the industrial enterprises in their 
 own sphere, may all encounter obstacles, the removal of 
 which not only lies within the power of the Sovereign 
 authority, but even becomes a duty. This function, 
 however, has also a positive influence upon these spiritual 
 and material interests, in so far as they are common to 
 the whole people and affect individuals as members of the 
 State ; and these relations cannot be separated from them. 
 
 It is difficult to determine by general rules how far 
 ' positive ' interference on the part of the Government 
 with such interests, should or may go. A mere laisser 
 /aire policy may be driven too far, and under certain 
 circumstances may even become prejudicial to the State. 
 An excessive activity of the Government in the way of 
 Guardianship, is almost always so. A guarantee against 
 this latter extreme, will be furnished by the Supreme 
 Power keeping in view the maintenance of rightful order 
 as its proper aim, and regarding such positive activity as 
 only to be exerted indirectly for the attainment of that 
 end. 
 
 The function of the Supreme Power would certainly 
 be exhibited in a simpler way, at least theoretically, if 
 the view so zealously maintained by many politicians 
 were correct, that the State includes completely in itself 
 the whole of the destination of man, or at least his whole 
 earthly destination. According to this view, the action 
 of the Government would have no limit whatever, except 
 what was practically impossible, in carrying out and 
 satisfying this unlimited vocation. To regard the indivi- 
 dual as a member of the State, would thus be to view and 
 deal with him in all his relations. But this theory 
 receives a practical refutation in the very fact that it has 
 
INTERNATIONAL EXTERNAL RIGHT. 9 3 
 
 only arisen out of isolated speculations or the unlimited 
 ambition of individuals, and is decisively rejected by the 
 practical sense of all nations. 
 
 INTERNATIONAL RIGHT AS EXTERNAL 
 POLITICAL RIGHT. 
 
 The external side of the State, is presented in its 
 relations to other States. The relationships into which 
 the individuals who belong to different peoples enter with 
 one another, are public relations in so far as they arise 
 out of the fact of their being members of different States, 
 whereas the commercial intercourse carried on between 
 different nations, is primarily a private relationship in so 
 far as those who carry it on are regarded merely as indi- 
 viduals. But when a special protection is vouchsafed to 
 the foreign merchant because he is the citizen of a certain 
 State, the commercial intercourse becomes a Public re- 
 lationship ; it is a mode of intercourse between the 
 States so that these States themselves appear in their 
 members as Persons. The Eight which determines these 
 relationships to other States, and which regulates the 
 action of a State in regard to them, is constituted from 
 the standpoint of the several States. The constitution 
 and maintenance of these relationships are, therefore, at 
 the same time directed towards the preservation of the 
 independent existence of each State, and this forms the 
 external Eight of the State in its foreign relations. 
 Moreover, as all the States which stand in such relations 
 to each other, recognise certain principles of Eight upon 
 which these relations rest, there thus arises a System of 
 International Eight. The essence of this International 
 Eight, lies in the fact that the personality of the several 
 
94 THE SPHEEE OF EIGHT. 
 
 States is recognised by it ; and their co-operation in 
 respect of reciprocal rights, is thereby guaranteed. The 
 actual execution of what is prescribed by International 
 Eight against a relative or absolute wrong that has arisen 
 between one State and another, is primarily left to the 
 individual resources of the injured State so far as its 
 own power goes ; and it is therefore of a precarious 
 nature. But it is expected that the power of the weaker 
 State will under certain circumstances be supplemented 
 by the power of other States, according as they are driven 
 to furnish this help, partly from the feeling of Eight, and 
 partly from a regard to their own interests. 
 
 TRANSITION TO ECCLESIASTICAL EIGHT. 
 
 The State further stands in an entirely peculiar re- 
 lation to the Church, which is at once in it and out of it. 
 The different States are political unions similar in kind 
 but separated by external boundaries ; the State and the 
 Church are not separated by the distinction of external 
 territory, but by the dissimilarity of their nature. They 
 involve, however, a relation to each other. The State 
 obtains from the Church the education of its citizens into 
 obedience to the Divine Law, which is the true founda- 
 tion of obedience to the sovereign authority as the 
 ' servant of God,' as also of the fidelity of the rulers 
 in their calling ; and, on the other hand, the Church 
 obtains from the State the external protection of its 
 rightful existence. The rights of the State in relation to 
 the Church, and their limits as determined by its proper 
 function and the independence of the Church, thus belon"- 
 to another division of Public Eight, which is called 
 Ecclesiastical Right. 
 
ECCLESIASTICAL EIGHT AND EELATIONS. 95 
 
 III. ECCLESIASTICAL RIGHT. 
 
 36 . The Nature and Forms of Ecclesiastical Right. 
 
 Besides the natural connections of man in the Family 
 and the People, he is also determined to a supernatural 
 relation which leads him above his earthly existence, and 
 up to God. Eeligion, as essentially a common conscious- 
 ness of God, manifests its existence in the union of those 
 who share in this consciousness. The community of 
 Believers thus formed, is not an accidental thing ; it is 
 involved in the very nature of Eeligion. 
 
 There are certain national Eeligions ; and in these the "• 
 religious union coincides with the national and political < 
 union. There is therefore no association different from | 
 that of the People and the State produced by these I 
 Eeligions. 
 
 On the other hand, Christianity is to be regarded as \ 
 the religion that has been freed from mere national 
 limitations ; and its manifestation in the communion of 
 those who profess it, must therefore correspond to this 
 its essential character. The union constituted by the 
 Christian Eeligion, must thus have an independent exist- 
 ence of its own in relation to the separate Peoples and 
 States. The idea of the Church rests upon this inherent 
 independence. 
 
 The Eomans regarded the jus sacrum only as a part of 
 the JUS publicum ; and this was entirely conformable to 
 the character of their Eeligion. On the contrary, the 
 Eight embodied in the Christian Church, appears as 
 essentially a third branch of Eight, in addition to Private 
 Eight and Public Eight. 
 
96 THE SPHERE OF EIGHT. 
 
 The Church is the community formed by all believers. 
 It has been made a visible community by Christ Himself, 
 through the command to proclaim the divine Word in it, 
 and by the institution of the Sacraments. It is the visible 
 representation of ' the Kingdom of God upon earth.' ^ 
 
 Now this union receives a jural form ; and the Church 
 in the spiritual sense, thus becomes a Church in the jural 
 sense, just as the union of the people receives a political 
 form and becomes a State. This step is as little arbitrary 
 in the one case as in the other. The essential nature of 
 the spiritual Church, in so far as it is a union of men, 
 leads of itself to this jural formation of it. 
 
 The Church rests upon the common faith, and upon its 
 own forms of action. It is love to God, with the love 
 through Him to the brethren, which cares for the eternal 
 and temporal weal of the brethren ; and it manifests 
 itself through Doctrine, Prayer, the Sacraments, and the 
 Cure of souls. The actions that are grounded in Faith 
 and in Love, and which proceed in the consciousness of 
 fellowship with God and the brethren, make up the 
 Christian Worship. Every member of the Church who 
 performs an act of worship in the consciousness of this 
 fellowship, is a representative of the Christian com- 
 munion ; he recognises himself as a member of the Church, 
 and the others recognise this act as proceeding from the 
 whole Body which they form with him in common. The 
 Church itself is thus active in her members, so that their 
 actions are Tier acts. Certain ecclesiastical organs are 
 
 1 [That is, in so far as the Spirit of its Founder has not departed from it, 
 or as the internal corruption into which it may have fallen by sin against 
 that Spirit has been overcome. Otherwise, the Kingdom of God is only 
 where that Spirit is ; and where it was, only the framework of the eccle- 
 siastical institution remains. — Rxtdoeff. ] 
 
ECCLESIASTICAL RIGHT AND INSTITUTIONS. 97 
 
 established in order to make the uninterrupted activity 
 of the Church on all its sides, independent of accident, 
 and to keep alive the consciousness of communion. To 
 these the activity of the Church is entrusted as their 
 special function ; and each in a certain sphere, represents 
 the community by right. These organs are, first of all, 
 the Congregations into which the Church is articulated, 
 so that every member of the Church shall find himself in 
 such a congregation, and may be active in it for the whole 
 community, while all the Churches together by right 
 exhibit the whole Church. The other organic Institu- 
 tions are formed by the Ecclesiastical Ofiices as forms of 
 ministry in the Church and the Congregations, directed 
 to the various modes of ecclesiastical activity in Doctrine, 
 Sacraments and Pastorate, either immediately by direct 
 personal exercise of them, or mediately by supervision of 
 them and provision for their maintenance. 
 
 This representation of the Church by its Congregations 
 and Ecclesiastical Offices, gives the Church its jural form. 
 It gives the objects of Ecclesiastical Eight which has to 
 determine the conditions of the establishment and opera- 
 tion of these Institutions, and at the same time to 
 regulate the membership of the Church as personal 
 participation in this jural order. The question is thus 
 determined as to who is to be regarded as by right a 
 member of the Church. 
 
 Ecclesiastical Eight is to be distinguished into the 
 internal and the external Eight of the Church. The 
 latter determines the relations of the Church to the 
 State ; and, where several Churches exist alongside of 
 each other, it has also to determine the relationships of 
 any one Church to all the rest. 
 
98 THE SPHERE OF EIGHT. 
 
 27. The Relationships of Right as Members of an 
 Organism. 
 
 The foregoing exposition has shown how the relations 
 of Persons divide according to their respective positions 
 in the social union, and how they become connected into 
 separate masses as Private Eelationships, Public Ee- 
 lationships, and Ecclesiastical Eelationships. It has been 
 further seen how the Eight which regulates these 
 Eelationships becomes divided into three corresponding 
 departments, as Private Eight, Public Eight, and Eccle- 
 siastical Eight, and that each of these has its own 
 peculiar function. Further, they all stand as members 
 of one organism, not merely under one Principle equally 
 involved in them as the principle of Personality in actual 
 operation, but they are, in various ways, linked into 
 connection with one another. The Eamily acts upon the 
 means of the private Estate by entering into relation with 
 it, and this cannot take place without a reaction of the 
 relationships of Property upon the formations of the 
 Family. Again, the State and the Church act upon the 
 Family and upon the relationship of Property, by giving 
 to the family a special political and ecclesiastical vocation, 
 and assigning to property a destination for ecclesiastical 
 and political ends. 
 
 There may be, however, an abnormal Encroachment of 
 the principle of one department of the sphere of Eight 
 upon that of another. In man there is a tendency to refer 
 the external world not merely to himself as a Person, by 
 which Eight as such obtains its material, but more 
 particularly to refer it to himself as an individual. If 
 this impulse is not controlled, it gives rise to an abnormal 
 influence of the principle of Private Eight in the sphere 
 
THE OEGANIO RELATIONS OF EIGHT. 99 
 
 of Public Eight, such as is shown by Despotism on the 
 one hand, and by the striving after unlimited individual 
 freedom on the other. 
 
 Such an encroachment, by giving the upper hand to 
 one principle in the domain of another, will always issue 
 in a result that is prejudicial to both ; each of them 
 being weakened in its own sphere in the proportion in 
 which it becomes powerful in the other. This is seen in 
 the case of Despotism which is founded on the conception 
 of the supreme power as a private right, whereby it 
 becomes conjoined with insecurity of what are really 
 private rights, from their being thus exposed to the 
 arbitrary attacks of the political power. The same result 
 usually follows the ascendency of revolutionary sentiments. 
 
 It is otherwise when the principles of Private and 
 Public Eight are mixed up merely in the natural move- 
 ment of their gradual development, and when they are 
 really advancing towards mutual distinction. In such 
 circumstances, their state of combination is to be re- 
 garded as a mere stage of transition, and as bearing in 
 itself the germ of advance to purification. In this light 
 we have to regard the mixture of the notions of political 
 and private Eight, which are contained in the Feudal 
 System, as an earlier stage in the formation of the modern 
 State. But such an apology cannot be claimed for the 
 view taken of the sovereign power as a private right of 
 property in the land and people ; for, while the Feudal 
 Constitution was an expression of the monarchy corre- 
 sponding to its relations in an earlier period, such a view 
 of the supreme power has never been comformabJe either 
 to the nature of monarchy or to any other political 
 constitution. 
 
100 THE SYSTEM OF EIGHTS. 
 
 B,— SYSTEM OF BIGHTS. 
 
 28. Right; Personality; Jural Capacity; Natural and 
 Juridical Persons. 
 
 Eight makes man a Person, and determines his activity 
 as a Person. Personality is thus the possibility of a 
 jural Will regarded as the quality of a subject. The 
 same conception is also indicated by the expression 
 ' Jural Capacity ' or ' Capacity of Eight.' Eight brings 
 this capacity, which belongs equally to all men, into 
 prominence ; it gives it the first place in its sphere, and 
 subjects the differences of individuals to it. Eight thus 
 controls the manifold material which is presented by the 
 inequalities of men in race, sex, age, corporeal powers, 
 and natural dependency, by reducing them under the 
 principle of Equality. But by the reaction of these 
 material conditions, a certain multiplicity is introduced 
 into the jural form itself. These natural relations cannot 
 be ignored by the principle of Eight, since they form 
 the very material upon which it has to operate ; nor, on 
 the other hand, can it abolish them so as to carry out 
 the absolute equality of Persons. 
 
 Tlie conception of Personality thus admits a recogni- 
 tion of different stages, as constituted by different classes 
 of persons with a different capacity of right. Eight, 
 accordingly, in order to satisfy these individual considera- 
 tions, and to incorporate them into itself, assigns to 
 certain men limitations of Personality. It controls the 
 natural inequalities of men, by making them inequalities 
 of Persons as such. This tendency of the power of 
 external things, has misled several peoples in their 
 
JURIDICAL PEESONS AND CAPACITY. 101 
 
 systems of Eight so far as entirely to refuse to recognise 
 personality in many individuals. 
 
 On the other hand, in order to give to certain rela- 
 tionships a jural form conformable to their nature, the 
 principle of Eight has passed beyond the individual man 
 as the natural subject of Personality, and has created 
 other persons besides individuals, called ' Juristic ' or 
 ' Juridical Persons.' ^ 
 
 There are goods which are destined not for the purposes 
 of man as an individual, but for a number of individuals 
 united together as in a Corporation. Who then is to be 
 regarded as the Person to whom these goods belong ? Is 
 it all the individual persons who form the Corporation, 
 each up to a certain part ? This certainly would not 
 correspond to the nature of the relationship, since the 
 goods in question are not destined for the individuals 
 as such, but for them as members of the whole union, or 
 for the whole Corporation. To say that the individuals 
 are the owners, would give to these goods a different 
 character from what they are meant to have ; and it 
 would likewise be dangerous, for the attainment of the 
 ends in view, to lend the individuals, as individuals, power 
 over them. The only view that is conformable to the 
 nature of the thing, when the goods are assigned to the 
 union or corporation as a whole, is therefore that accord- 
 ing to which the union or corporation is regarded as an 
 invisible ' Juridical Person,' quite different from the 
 Natural Persons who form its membership. 
 
 Personality differs according to the departments of 
 Eight that rest upon the differences in the positions of the 
 
 1 [The term 'Juridical' is preferred to 'Juristic' in this connection, as 
 a better contrast to 'Natural,' and as also distinct from 'Jural' and 
 'Juristic,' as used above. — Tb.] 
 
102 THE SYSTEM OE EIGHTS. 
 
 individual, and of his relationships as determined thereby. 
 There is thus Private Personality, Public Personality, 
 and Ecclesiastical Personality. The rule is, that the 
 individual may unite equally in himself all these person- 
 alities, but that according to the different nature of the 
 relationships whose jural determination is in question, 
 the one or the other may only come into considera- 
 tion. 'Now, in each of these aspects of Personality, the 
 inequality of persons referred to, may appear ; and the 
 individual, whether regarded as a private person, as a 
 public person, or as an ecclesiastical person, may have a 
 full or limited jural ca,pacity. And in like manner, it is 
 also possible that he may occupy in relation to one 
 aspect a higher stage, and a lower stage in relation to 
 another; or he may be entirely devoid of Personality so 
 far as such a relation is concerned. 
 
 29. The basis of the System of Rights; Guarantee of 
 Rights ; Wrongs as Violations of Rights ; Protection 
 of Rights by Self-help and by Courts ; Actions. 
 
 Personality, as the possibility of a jural will, comes 
 into action by the person obtaining a real power over an 
 object, and this constitutes a Eight in it. According to 
 the difference by which the person is distinguished as 
 the subject of such a Eight, all rights may be arranged 
 as private rights, public rights, and ecclesiastical rights. 
 
 Eight may be regarded as the power which the 
 Common Will gives to a person over an object. It is 
 not sufficient to guarantee the jural power over the object, 
 without giving likewise actual power over it; rather 
 does Eight require the union of the two. Hence, the 
 separation of them, so as to give the existence of a jural 
 
BASIS AND GUARANTEE OF EIGHTS. 103 
 
 power from which the actual power is withdrawn, or the 
 existence of an actual power to which no jural power 
 corresponds, constitutes a Wrong ; and against it rights 
 must be protected, if Eight is to have reality. The 
 actual power over an object, may also be regarded as the 
 exercise of the jural power as a right over it. A right 
 is therefore violated when its exercise is hindered, in 
 whole or in part, by other persons. The violation of a 
 right, invokes the protection of the right ; and the end of 
 this protection, is the restoration of the exercise of the 
 right which has been hindered. The person who has 
 been violated in his right, has to be put again into the 
 condition in which he would be, had no such violation 
 occurred. Protection against violations of right, is an 
 essential requisite for maintaining the existence of a 
 right ; it may vary in its degree of imperfection or 
 perfection, but no right is conceivable without some 
 protection. 
 
 The restoration in question may take place voluntarily, 
 by the action of him who violates the right when he has 
 come to the knowledge of the wrong he has committed. 
 But if this alone were relied on, rights would have an 
 extremely precarious existence. There must be means 
 of bringing about the restoration required that are inde- 
 pendent of the judgment and goodwill of the individual, 
 and of enforcing it as a matter of right. Hence an 
 important element is added to the conception of a right, 
 in the implied necessity of its protection. A right can 
 only be that kind of power which can be exercised by 
 some mode of compulsion ; and only so far as this is 
 possible, has power over an object the character of a 
 right. 
 
 One means of attaining to this restoration, and of 
 
104 THE SYSTEM OF EIGHTS. 
 
 carrying out the exercise of Eight against any one who 
 violates it, is presented first of all in the power of the 
 subject of the right himself ; that is, in the self-help of 
 the individual. This means of vindicating Eight, is both 
 questionable and inadequate. It is questionable, because 
 the party himself is usually unable to estimate correctly 
 the limits of his own right and the wrong of his 
 opponent ; or, if his knowledge is not awanting, interest 
 and passion will commonly make him outstrip the proper 
 limits of its execution. Moreover, the right of the 
 person who alleges the injury, is contested by the oppo- 
 site party, so that a decision on the question is the chief 
 thing required ; and this must be given unquestionably 
 by a third impartial party. Again, the means referred 
 to is inadequate, because, in order to succeed, it assumes 
 that the party in the right will be always the stronger. 
 
 It would be a decided imperfection if the realization 
 of right were made to rest upon such individual contin- 
 gencies. "We have seen that one department of Eight, 
 namely. International Eight, suffers from this defect ; it 
 is as such an imperfect part of our jural structure, and 
 it should remind us that our right is limited, and that 
 there is a limit beyond which wrong may become too 
 powerful for right itself, so that it requires a higher aid. 
 But it would not be justifiable to transfer this inadequate 
 condition to the internal relations of the States, which 
 would happen were the public rights of the citizens to 
 remain without judicial protection, and were the members 
 of the Commonwealth to be put in consequence on the 
 same footing towards each other as the separate peoples 
 are. The means of maintaining Eight by self-help, 
 cannot be favoured or encouraged in any well-ordered 
 institution of Eight. It is not to be absolutely excluded 
 
ACTIONS AND DEFENCES IN EIGHT. 105 
 
 from such a state of things ; but it has to be limited 
 merely to the maintenance of an actual present state 
 and prevention of its change. It is to be so limited, 
 however, by a protection that is to be sought from the 
 constitutional organ of the Common Will. As the protec- 
 tion of Eight generally against crime, constittxtes one of 
 the chief functions of the Supreme Power, so does the 
 protection of rights against relative wrongs also belong 
 to it. In behoof of the restoration required, there is 
 connected with the rights in question the possibility of 
 calling for judicial aid, on account of their violation, and 
 of thus establishing these rights before a tribunal, and 
 demanding the restoration of the condition of things that 
 existed before they were violated. The process by which 
 such judicial protection is invoked, takes the form of 
 ' Actions ' and ' Defences.' An ' Action ' is the process by 
 which one who alleges a violation of his rights, brings 
 his case before the judge for decision, and invokes his 
 aid. Over against the raiser of the ' Action ' {actor), 
 who, as the Complainer, Plaintiff, or Pursuer, is conse- 
 quently the beginner of the process, stands the Defender 
 or Eespondent, as the person accused (reus), who defends 
 himself against the allegation or claim. His defence may 
 be made by Denial, or Negation of the alleged ground of 
 the case ; or it may be done by Exceptions to it, in 
 which he may assert that, even if the claim of the raiser 
 of the Action were well founded, he is to be absolved or 
 assoilzied from its conclusions on special grounds. Thus, 
 if a plaintiff or pursuer, as the owner of a thing in the 
 possession of the defender, demands its delivery, the 
 defender may deny the ownership of the pursuer ; or he 
 may admit this, and yet allege a right in his favour 
 which justifies him in retaining possession of the thing, 
 
106 THE SYSTEM OF EIGHTS. 
 
 although belonging to the pursuer; and so he may 
 refuse to surrender it. In the former case, he defends 
 himself by Negation ; in the latter, by Exception. On 
 the other hand, the pursuer may maintain his claim 
 against such an Exception either by Negation or by a 
 Counter - exception ; and this is called Eeplication or 
 Counter - plea. Again, a Duplication may be further 
 opposed to this on the part of the defender, and so on. 
 These legal acts may be looked at from the point of view 
 of their possibility ; and the same forms of expression as 
 to Action and Exception, are used in reference to the 
 possibility of instituting or defending a process. The 
 right of Action in this sense, constitutes an element in 
 the system of Eight which is thus brought into force ; 
 and this right forms the foundation of the Action. The 
 foundation of Exception in defence, is either a right on 
 the part of the defender, or some other circumstance by 
 which he asserts that he ought to be freed from the 
 claim of the pursuer, altogether or for the present. 
 Further, the occasion of the Action is to be distinguished 
 from the grounds of it. The occasion in the case of an 
 Action, is the violation of the right of the pursuer. In 
 reference to the defence, it is the institution of the suit ; 
 and in reference to a replication, it is the allegation 
 averred. 
 
 30. Division of Rights by Relation to their Objects into 
 Rights in Things, Rights in Persons, and Rights 
 in Actions. 
 
 Every right is a power over an object ; and every right 
 must have an object which in virtue of this right is 
 subjected to the jural wiU. Moreover, every such object 
 
EIGHTS IN THINGS. 107 
 
 must be so constituted that the actual power correspond- 
 ing to the jural power, may be capable of being carried 
 out compulsorily against any violation of it. 
 
 The objects of the human will, which as such are 
 capable of jural subjection, have endless individual 
 differences. What variety there is in the corporeal things, 
 lifeless or living, which are assigned to the dominion of 
 man ! The difference in their natural qualities is great, 
 and it is much increased by artificial modification of them 
 for human wants. 
 
 Now in all these objects, the principle of Eight brings 
 into prominence what is common to them, namely, that 
 they are objects jurally subjected to us ; and so far they 
 are equal as regards Eight. But as Eight generally does 
 not abolish individual inequalities, but only controls them, 
 these differences have also a validity of their own and 
 react upon Eight. The jural power receives a different 
 qualification through the difference of its objects, although 
 all their individual differences have not this influence 
 upon the jural form which controls them. 
 
 The nature of these objects furnishes the basis of the 
 multiplicity of Eights, just as the natural distinctions 
 among men form the foundation of their difference as 
 Persons. The effect of this natural operation of things 
 upon the sphere of freedom, is to give Eight the rational 
 character and the necessary connection by which it 
 becomes a System. The System of Eights thus rests 
 upon the determining influence which Objects have upon 
 them. 
 
 1. The first class of objects upon which jural power is 
 directed, is given in the Corporeal Objects that are 
 external to man, to dominion over which man was called 
 by the oldest law of Eight (Gen. i. 26). These are called 
 
108 THE SYSTEM OF RIGHTS. 
 
 Things. However different they may otherwise be, this 
 name indicates the element common to them all, of their 
 complete surrender to the dominion of Eight. The jural 
 subjection of such objects gives rise to Eights in Things, 
 which are also called Eeal Eights. A Eight in a Thing 
 is always the same in kind, whether it refers to the 
 ground and the soil, or to an animal, a plant, a stone, and 
 so forth. The natural difference of objects, however, 
 exercises an influence upon Eights, so far as it can be 
 regarded as a difference of the things themselves ; that is, 
 as a difference of them on the side on which they are 
 related to Eight. Hence Eight makes a distinction 
 between Movable and Immovable Eights, — between fields 
 and buildings, tame and wild beasts, and such like, — 
 while it is quite indifferent so far as Eight is concerned 
 to what Natural Class of things an animal or such like 
 may belong. The influence which the differences of 
 things have upon Eight, may relate either to the origin 
 and maintenance of the rights in these Things, or to the 
 nature of the Eights themselves. This holds not merely 
 in that certain rights only are assumed in respect of 
 certain kinds of Things, but in that certain Things alone 
 are recognised as the unconditional objects of full human 
 dominion with all its consequences. This is shown, for 
 instance, in those forms of legislation which refuse to 
 ownership in Movables, total and undisturbed proprietary 
 protection. Of more universal importance is the differ- 
 ence that is presented by every individual Thing as to 
 jural subjection, that it may be subjected either completely, 
 or only partially by reference to a particular side of it on 
 which it has some particular value to man. This is 
 illustrated by the fruit which may be obtained from an 
 object, or the use which may be made of it. In the case 
 
EIGHTS IN PERSONS. 109 
 
 of total power over a Thing, we say the thing belongs to 
 me or is my own {res mea est) ; and in the other case only- 
 some particular side of the thing belongs to me as usu- 
 fruct {usus fructus mens est), and we have a right thus far 
 to a Thing that is owned by another. 
 
 2. The second class of the objects of Eight, is consti- 
 tuted by Persons. Hence Eights in peesons, by the 
 nature of their objects, are different from Eights in 
 Things. Some Eights in Persons have received in the 
 systems of various peoples a form analogous to Eights in 
 Things, but this has had its ground only in the fact that 
 the position of certain persons has been treated as 
 analogous to the destination of things. This assimilation, 
 where it has gone farthest, has taken these persons even 
 out of the class of Persons, and put them into that of 
 Things. This was the case with the Slaves in the Eoman 
 Empire ; and in the earliest period of the Eoman Law, 
 the same idea of right brought the condition of Children, 
 even in their private relation under the paternal power, 
 very near to this position by regarding them as parts of 
 the paternal Estate. And even the latest Eoman Law, 
 although it greatly limited this principle in application, 
 did not entirely give it up. In the sphere of Public 
 Eight, despotic constitutions have made the sovereign 
 power, which is a right in Persons, similar to a right in 
 property, by an analogous assimilation of men to things. 
 
 The subjection of one Person to another by right, can 
 never be so complete as in the case of a Thing. Under 
 a total dominion, a Person would no longer be the subject 
 of jural freedom ; and he would therefore cease to be a 
 Person. Every right in a person is, therefore, a limited 
 form of power ; it is the control of only a certain side of 
 the person. This includes the possibility of a reciprocal 
 
110 THE SYSTEM OF EIGHTS. 
 
 power existing between persons. Thus Conjugal Eight 
 is a right on the part of each spouse in the person of the 
 other ; and it applies to the conjugal life so far as it 
 admits of a jural form. In like manner, in the case of 
 Parental Eight, in the person of the Children there is a 
 corresponding right of the children in the person of the 
 Parents. To the right of a Prince in the person of the 
 Subjects, there is similarly a corresponding right of the 
 Subjects in the person of the Prince. So in like manner, 
 an Heir who has as such a right in the person of a 
 Testator, is at the same time determined and controlled 
 by the personality of the Testator. This view, which 
 follows from the impossibility of the total subjection of one 
 person to another, seems somewhat strange to our modem 
 jurists, merely because they apply to the conception of 
 Personal Eight the standard of the 'Roman patria potestas, 
 or similar criteria which are certainly one-sided. But 
 this one-sidedness arises only from the anomalous intermix- 
 ture of the character of a Eeal Eight, by which the nature of 
 Personal Eight is obscured. Instead of questioning the 
 quality of Conjugal Eight as a Personal Eight, because 
 it pertains not merely to the husband as Eight in the 
 wife, but also to the wife as Eight in the husband, this 
 very reciprocity must rather be regarded as the proof that 
 there is such a right. All genuine and pure Eights in 
 Persons, involve a reciprocity in so far as the subject of 
 such a right is at the same time the object of a right, 
 although it may not be the very same right. By this 
 fact the personality of the individual is maintained under 
 such a form of dominion, and is preserved from the fate 
 of things as absolutely subjected objects. Without a clear 
 apprehension of this idea, the nature of Public Eights 
 cannot be correctly understood. 
 
EIGHT OF PERSONALITY. Ill 
 
 Further, there is a right in one's own person, by which 
 the will assumes an immediate relation to itself. The 
 Eight of Personality, as the jural power of being a person, 
 is a complete power over the whole determination of the 
 person. Against this conception of personality as a parti- 
 cular right, it has been objected that mery right is such a 
 relation of the will to itself ; for every right contains the 
 subjection of an object to the will. This is correct, 
 and in fact every right is on this very ground an 
 externalization of Personality as the power involved in 
 all rights. As the owner of a thing, I bring it into 
 relation to my own person ; and in the assertion of 
 ownership there lies at the same time the assertion of 
 Personality, without which I could not be an owner. 
 But this proves nothing against the conception objected 
 to. There would only be force in it if the indirect 
 relation of the will to itself referred to, excluded a direct 
 relation. But we must rather draw the opposite con- 
 clusion, that this indirect relation demands the existence 
 of a direct relation of the will to itself. If it is said that 
 every right is a right in one's own person, and there is 
 therefore no further place among rights for the personality 
 as such, it would amount to saying that personality 
 is a jural power in property and in obligations, but that 
 without property or obligations it is itself not a jural 
 power. In fact, a personality which formed only a 
 possibility of rights would be a powerless thing which 
 would continually be lost and merged in the objects lying 
 outside of it, as it would lack the power to find satis- 
 faction for even a moment in itself, or to rest upon itself. 
 A possibility which could not exist as possibility, but 
 must necessarily pass into something else, would not be 
 freedom. Whoever, therefore, regards personality as not 
 
112 THE SYSTEM OF EIGHTS. 
 
 being itself a right, asserts that it has its existence only 
 in the rights in external objects, and that it is but the 
 soul that is embodied in these rights, and without them 
 it would vanish like a breath. Any one holding this view 
 is on the same standpoint as he who recognises God as 
 only the soul of the world, and who accepts only a God 
 in nature. And as the latter gives up the personality of 
 God, so does the former in fact give up the personality of 
 man, putting in its place a mere possibility which can 
 only have a potentiality of existence in something else. 
 Its being, therefore, can only amount to a being outside 
 of itself, and this would be quite wrongly called a 
 personality. "We may thus see what would remain of 
 other rights, if the head of them all were taken away 
 with the removal of the right of personality. 
 
 Jaoet ingens litore trunous, 
 Avulsumque humeris caput, et sine nomine corpus. ' 
 
 3. Between Things and Persons there lies another 
 third object, from which a separate class of Eights arises. 
 One Person is bound to another by obligation to perform 
 something which has a real value, such as the giving of a 
 thing or the guarantee of active power. Thus by the 
 Obligation of one person who becomes a Debtor, another 
 
 1 Objection is taken to the Right of Personality viewed as a right in 
 one's own person, that from it there would follow a right to commit xuidde. 
 This objection is entirely groundless and inapplicable. It rests upon a 
 confusion and interchange of the conceptions of ' man ' and ' person.' 
 Personality is not a power over our own humanity, but over our own 
 person. The objection loses sight of the important and incontestable fact 
 that it is not the person as such, but the individual man, that is destroyed 
 in the act of suicide. It would only apply as against any one who assumed 
 a Right of Humanity in the sense of a jural power to be a man, wMcli has 
 never occurred to any sound understanding. 
 
EIGHTS IN ACTIONS. 113 
 
 obtains a right as a Creditor ; and the object of the right 
 is neither a thing, nor the value which the debtor has t o 
 discharge, nor the person of the Debtor, but something 
 which stands intermediate between them. It is an action 
 which forms the object of the right. The Creditor has 
 thus a power over this action of the Debtor,^ but only in 
 so far as it has a real value ; and therefore it is not a 
 power over the personal side of the action, but over its 
 real side. Hence the right of the Creditor would be 
 satisfied even if the specific action should not be per- 
 formed, were the value which it may have for him under 
 the given circumstances discharged. Thus the object of 
 the obligation at the same time becomes capable of being 
 enforced ; for although an Action, in the full sense of the 
 term, cannot be enforced, — as it presupposes an act of 
 will to which no one can be compelled, ^ — ^yet a Thing can 
 be taken away from the debtor in which the action finds 
 its perfect equivalent. 
 
 These are Eights in Actions; and they are distin- 
 guished in this respect from all other rights, that they 
 are essentially directed against a particular person, such 
 as a debtor, and his obligation is the counterpart of the 
 claim upon him. They are therefore also called Personal 
 Rights (Jura in personam). This gives a peculiar 
 character to the exercise and enforcement of them. 
 They are exercised in the way of a demand for their 
 performance, and it can only be directed against a parti- 
 cular person, such as a debtor ; he is the only person 
 who can violate the right of the creditor by refusal of 
 performance, and it is only against him, therefore, that 
 the right can be enforced. An Action arising out of 
 obligations, therefore, proceeds against a person who is 
 already indicated by the existence of the right from 
 
 H 
 
114 THE SYSTEM OF EIGHTS. 
 
 which the Action arises. Thus it is only the creditor 
 who can raise an Action against a debtor. Such Actions 
 are Personal Actions (m personam adiones). It is quite 
 otherwise in the case of Pdghts in Things. The person 
 against whom an action in connection with them has to 
 proceed is not already indicated by the very nature of 
 the right itself, but only by the violation of the right, 
 which is not limited merely to some particular person 
 who can be determined beforehand. Such Actions, in 
 contrast to the former class, are called Eeal Actions (in 
 rem adiones). The same relation holds of the right of 
 Personality, and also of the rights in other persons 
 which have received a form analogous to Eeal Eights ; 
 such as the right of the paternal power, an action arising 
 from which cannot be directed against the subject him- 
 self, but only against a third violator of the right. The 
 relation does not apply to pure rights in persons, such as 
 Conjugal Eight, Parental Eight, and Public Personal 
 Eights. In these cases, enforcement of the right against 
 the person who is its object is not excluded, although 
 the violation may have been caused by a third party ; 
 nor is the prosecution of the right against this party 
 impossible. Thus a husband may assert his conjugal 
 rights against the parents of his wife, when they keep 
 her from him ; or one corporation may assert a right 
 against another that contests a claim over a citizen ; or 
 one who has a right to jurisdiction may raise an action 
 against one who interferes with his relevant rights. 
 
 All the rights which can belong to us, are thus either 
 Eights in Things, or Eights in Actions, or Eights in 
 Persons. 
 
SYSTEM AND RELATIONSHIPS OF RIGHT. 115 
 
 Relation of the System of Rights to the System of Jural 
 Relationships. 
 
 In conclusion, we have still to consider the relation of 
 the System of Eights to the System of the Jural Eela- 
 tionships. The latter rests upon the positions of persons, 
 the former upon their actions. The System of Eights 
 begins within the System of the Eelationships of Eight. 
 It is not at all restricted to Private Eight. There are 
 rights whose subject is a private person, a public person, 
 and an ecclesiastical person ; and so there are private 
 rights, public rights, and ecclesiastical rights. The 
 System of Eights is most completely developed in the 
 department of Private Eight ; but in that of Public 
 Eight, as inclusive of International Eight, all these 
 classes of rights are also found. Thus, there are Eights 
 in Things embodied in the jural power of the State over 
 the territory which belongs to it. The separate property 
 of the State, on the other hand, is to be viewed as a 
 private right. 
 
 C— INTERNAL COMPLETION OF RIGHT. 
 
 31. Equal Right. Common Eight and Singular Right. 
 Privileges. 
 
 Eight, as we have seen, consists in the recognition of 
 the Freedom which belongs to man as the subject of a 
 will, and in the protection of what is due equally to all, 
 notwithstanding individual inequalities. Equality through 
 the control of inequality, is thus the proper Principle 
 of Eight.^ It does not exclude inequality; but the 
 
 1 § 8 and § 9. ^ 
 
116 THE COMPLETION OF EIGHT. 
 
 inequality that is natural does not as such enter into 
 Eight, in so far aa is thereby meant the inequalities of 
 men as individuals, including the inequality of their 
 wants and the means of satisfying them. Right decom- 
 poses and transforms this natural inequality into an 
 inequality of persons, of things, and such like ; and it 
 thus reduces them under jural forms and relations. 
 Hence, it does not recognise the differences of men that 
 are determined merely by strength of body or power of 
 mind ; but in so far as their actual operations press into 
 the sphere of Eight, it maintains the conception of 
 equality among them by constituting them into differ- 
 ences of Persons as such, in reference to the jural action 
 and powers of one person over another ; and thereby it 
 gives to these differences a jural character. 
 
 The more a right unfolds itself, so much the more 
 completely will it become open to the claims of the 
 different natures of men and things. So much the less 
 stringent and hard will it thus become, and so much the 
 more elastic will grow the forms in which it is embodied, 
 while still preserving its fundamental principle throughout. 
 It will thus always approach nearer to the idea of a right 
 that harmonizes everything coming within its sphere in its 
 own proper way ; and so it will gradually realize the idea 
 of equal Eight, the cequum jus, as the Eomans called it. 
 
 We may call the Eight which maintains itself accord- 
 ing to its proper nature in its own sphere, ' Pure Eight.' 
 It has also been designated Gomffwn Right (jus commune). 
 But this pure development of Eight is often broken 
 through by Exceptions. The peculiar nature of indi- 
 viduals and of things, frequently asserts its claims in 
 such a way that these are put above principles instead of 
 being adapted to them. Exceptions from the order of 
 
COMMON AND SINGULAR EIGHT. 1 l7 
 
 Pure Eight have thus arisen. These have been desig- 
 nated by the expression Singular Eights {jus singulare) ; 
 and in so far as they may favour certain persons or 
 things against the Common Eight, contra juris rationevi, 
 these exceptional rights are called jural Privileges or 
 Benefits {privilegia, teneficia)} 
 
 It is not in the mere individual considerations invohed 
 that the character of the ' Jus Singulare ' lies ; for Pure 
 Eight itself cannot and should not be withdrawn from 
 this influence. It is rather in the mode and manner of 
 the right that its peculiarity consists, in so far as it exer- 
 cises its influence in the external form of an Exception 
 breaking through and superseding the established principles 
 of Eight, instead of having its claims satisfied by a corre- 
 sponding modification of the existing jural Institutions. 
 
 The fact that the latter method rather than the former 
 is adopted in the establishment of a jus singulare, is 
 founded not unfrequently on the want of that correct 
 insight and that mastery of the material which is 
 required on the part of the Legislator. It frequently 
 also arises from the peculiar character of a certain right ; 
 and is thus due to the jural ideas of the people them- 
 selves. And, finally, it springs from the imperfection 
 of human things generally, which excludes the complete 
 attainment of the idea of Perfect Eight, or the internal 
 completion of Eight in its purity. 
 
 'Two kinds of Privileges are to be distinguished — (1) Exceptions 
 from the jus commune, which are themselves common jural positions, as 
 containing a rule for the regulation of a class of cases, such as the Privi- 
 leges of Minors, of Women, and of Soldiers ; and (2) exceptions from 
 Eight in general, by which a special right is given to some particular 
 pt-rson, which has no effect in other cases, however similar, such as the 
 prolongation of the period during which a debtor may be protected from 
 his creditors without its applying as a right to other debtors in the same 
 position. It is only the former class of Privileges that are referred to. 
 
JUEISPEUDENCE AS A SCIENCE. 
 
 A.— THE PHILOSOPHY OF EIGHT AND JUEIS- 
 PEUDBNCE. 
 
 32. Eelation of the Philosophy of Eight to Jurisprudence. 
 
 The life in time consists of a movement in which the 
 individual undergoes change without losing its identity. 
 Every living organism exhibits two sides. It has, in the 
 first place, a movement within itself as an organization ; 
 it consists of members which are different from each other, 
 and which are nevertheless held together by a unity 
 constituted by the soul of the organism. Again, it has a 
 relation to a higher whole, within which it moves, and of 
 which it is a member. Thus the earth has a twofold 
 motion : it turns around itself, and thereby distributes the 
 light which is the source of its manifold formations over 
 its surface ; and it revolves around the sun, by which it 
 appears as the member of a higher organism. 
 
 So it is with the historical fact which we call Eight 
 It involves a twofold distinction by which Eight is made 
 at once the object of a special Science called Jurisprudence, 
 and of the universal Science which we designate as 
 Philosophy. 
 
THE PHILOSOPHY OF RIGHT AND JUEISPEUDENCE. 119 
 
 Attempts have been made to distinguish a so-called 
 Positive Science of Eight, and a Philosophical Science of 
 Eight, in the following way. The former is said to 
 have to do only with actual Eight, or with what is 
 positive and historical ; whereas the Philosophy of Eight 
 deals with a kind of right which is not given as a fact of 
 experience, but which must rather be deduced and evolved 
 out of the postulates of the universal Eeason. The 
 Philosophical Science is thus represented as having for its 
 object a Eight which has no history, but which arises 
 eternally and immutably out of the laws of the 
 unchangeable Eeason ; and this Eight was called Natural 
 Eight or Eational Eight. But such a Philosophy of 
 Eight, in so far as it was logically consistent with itself, 
 never had Eight really as its object ; for Eight can only 
 have its origin in freedom. It was not even a genuine 
 form of Philosophy ; for only that which has a history 
 can be the object of Philosophy. 
 
 This distinction has been also expressed in the follow- 
 ing way. The Positive Science of Eight deals with the 
 Eight that is, the Philosophical Science deals with the 
 Eight that ought to be. Here again the freedom of exist- 
 ence was assigned only to Positive Eight, and Eeason was 
 represented as being so powerless that it would strive in 
 vain to put it under limitation. According to this view, 
 Philosophy would have for ever to deal only with what 
 was unreal; for as soon as its object passed from the 
 sphere of the oticfht to be into what really is, it would 
 cease to be the object of Philosophy, and would fall under 
 the cognizance of Jurisprudence as the positive Science of 
 Eight. It might be supposed that this delimitation of 
 the two sciences had been invented by the Jurists, in 
 order, by an artifice, to drive the philosophers into the 
 
120 JURISPKUDENCE AS A SCIENCE. 
 
 back premises of their building ; but it was rather the 
 philosophers themselves who laid claim to it, as apparently 
 giving them a splendid reception room in front. By thus 
 renouncing the sphere of the real and positive, Philosophy 
 has fallen into the discredit of being hostile to it, or at 
 the best of indulging itself in a mere harmless play of ideas. 
 In order to escape this charge of unreality, the philo- 
 sophers have tried to advance a step farther. According 
 to this later view, what ought to he is still held to be the 
 object of the Philosophy of Eight, but it is vjhat ought to 
 he in the sphere of actual heing. Philosophy is thus 
 represented as dealing with real Eight, but only with 
 that which is rational in it ; and this rational element is 
 represented as just what is most properly real in God. 
 "We have already shown what this latter assertion in- 
 volves. Philosophy would gain little in the way of 
 respect, if it excluded the free side of Eight from its 
 sphere, and appropriated only its necessary and finite side 
 to itself. Besides, in whatever sense the rational may be 
 understood, it could never be abstracted from the sphere 
 of Jurisprudence, which as a science must always deal 
 with it ; and in doing so it would therefore leave nothing 
 over for Philosophy. The distinction of Philosophy from 
 •Jurisprudence on this ground, would only come to this, 
 that it would be half the Science of Eight, or but an 
 imperfect Jurisprudence. And this is the impression 
 which is made by the Philosophies of Eight as they 
 move in these circles. Many of them contain Eight, but 
 no Philosophy ; some of them contain neither Philosophy 
 nor Eight. The real function of the Philosophy of Eight 
 is to regard it as the member of a higher organism, seeing 
 that the special science has not the means for dealing 
 with it from this point of view. 
 
THE PHILOSOPHY OF EIGHT AND JUEISPKUDENCE. 121 
 
 It therefore specially devolves upon Philosophy, iirst 
 of all, to show how our world is related to the whole 
 organism of things, and how Eight has arisen as an 
 element in it, as well as how mankind have come to 
 realize Eight. Hence Jurisprudence must receive the 
 general conception of Eight from Philosophy, for this 
 conception rests upon the relation of the universal 
 organism of the world to its particular members. A 
 beginning in the scientific treatment of an object can only 
 be determined by going back to what precedes it, which, 
 therefore, is some other thing than that which lies in the 
 sphere of the special Science. Eight as a member of the 
 whole organism of things, has also a history in it and 
 with it. This history of Eight within the whole mental 
 sphere of human experience, is therefore the second part 
 of the task of the Philosophy of Eight. The Philosophy 
 of Eight has thus to investigate the beginning, and to 
 trace the progress of Eight through the history of 
 mankind up to its final consummation. The true philo- 
 sopher is a seer who looks into a past that has vanished 
 from the historian, and who beholds a future that is still 
 veiled from other eyes ; and he thereby gains a higher 
 and wider point of view for what lies between them. A 
 boundless field of reality is thus disclosed to Philosophy, 
 in which her powers are to be exerted instead of being 
 wasted in trying to deal with the unreal, and degrading 
 herself from her position as the Queen of all the Sciences. 
 Philosophy is stealthily robbed of her own, when the 
 sphere of positive reality is withdrawn from her. But 
 while thus maintaining her relation to it, it may not be 
 superfluous in the present to recall the fact, that the Eeal 
 is not to be confounded with what is merely present. 
 The present must appear to Philosophy as a transitory 
 
122 JUEISPEUDENCE AS A SCIENCE. 
 
 thing which she can neither maintain apart nor sink 
 into without losing herself; and she might say with 
 Faust, — 
 
 ' Then will the hour hear my refrain : 
 
 " linger still, thou art so fair ! 
 And though thou bind'st me in thy chain, 
 Yet will I gladly perish there ! " ' 
 
 The object of Jurisprudence as a special science, is the 
 System of Eight regarded as a separate organism apart 
 from its general relations as a member of the universe. 
 To the Jurist as such, within his own special sphere, 
 the connection of Eight with the whole spirit of man 
 remains concealed ; and in order to obtain the knowledge 
 of it in this relation, he must turn to the universal 
 science of Philosophy. But, on the other hand, all the 
 essential wealth of the whole sphere of Eight, and its 
 own internal organization, open up before him ; and the 
 Philosopher in turn has to receive his knowledge of these 
 from the Jurist. 
 
 The Jurist thus apprehends the System of Eight as 
 enclosed in itself, and in the present age it is presented to 
 him in the Eights of some particular people. The Philo- 
 sopher regards the rights of the several peoples only as 
 the constituent parts and traces of the movement which 
 Eight takes in its march through the whole of humanity ; 
 whereas to the Jurist they are isolated facts which he 
 connects with each other under the assumption that one 
 right passes into another as the system of one people has 
 been partly received by the other. Hence the particular 
 connections in the sphere of Eight which form the subject 
 of juristic investigation, do not yet constitute that uni- 
 versal connection according to which the rights of all 
 nations are only parts of one movement. 
 
THE PHILOSOPHY OF KIGHT AND JURISPRUDENCE. 123 
 
 Such being the relation between the Philosophy of 
 Eight and Jurisprudence as the special science of Eight, 
 it follows that they are both to a certain extent indepen- 
 dent of each other, and also to a certain extent dependent 
 upon each other. The extent of this connection is 
 determined at once by the nature of their relation. The 
 object of the science can be completely overtaken and 
 exhausted only by the operation of both the Philosophy 
 of Eight and Jurisprudence. If the question is raised as 
 to whether Jurisprudence is conceivable without Philo- 
 sophy, the answer depends upon the meaning attached to 
 the term ' philosophy.' A completely developed philo- 
 .sophical system is by no means to be regarded as a 
 necessary condition of Jurisprudence as a science ; and 
 still less may the demand be made upon the Jurist, that 
 he shall become a philosopher by profession. But with- 
 out some philosophical knowledge, he will not be able to 
 respond completely to the demands of his vocation. His 
 philosophical insight, however, may assume the character 
 of an unconscious habit of mind, and it has thus come 
 about that the special science has dealt with Eight in its 
 own sphere in accordance with its real nature, before 
 philosophy undertook as a system to discharge its task in 
 relation to the subject. In this way a mutual process of 
 giving and receiving has in fact been going on between 
 them. 
 
 From this point we now turn exclusively to the con- 
 sideration of Jurisprudence as the special science of Eight. 
 Its method as well as its object has still to be somewhat 
 more precisely determined. 
 
124 JURISPEUDENCE AS A SCIENCE. 
 
 B. — JURISPRUDENCE AS SCIENTIFIC KNOWLEDGE 
 OP THE SYSTEM AND HISTORY OP RIGHT. 
 
 33. The Systematical Knowledge of Right. 
 
 Eight regarded as a living organism (1) involves a 
 simultaneous multiplicity, arising from the fact that its 
 elements separate into organic parts or members, which 
 mutually condition and presuppose each other ; and (2) 
 it has also a successive multiplicity, arising from the fact 
 that it undergoes change in its various members and as a 
 whole. The Science of Eight has therefore two sides, 
 the one systematical and the other historical ; and in the 
 proportional combination of them, the true method of 
 Jurisprudence consists. But this does not exclude the 
 condition that a scientific investigation and exposition of 
 Eight in some particular relation, may proceed pre- 
 eminently by the one method rather than by the other. 
 It is not a one-sided method of procedure to give pro- 
 minence to one side of the whole subject ; but the jurist 
 is to be called one-sided when he deals with one side of 
 his subject as if it were the whole of it. 
 
 The systematical knowledge of Eight is the scientific 
 knowledge of the inner connection which unites its parts 
 together. The individual part is thus apprehended as a 
 member of the whole, and the whole system is viewed 
 as a body that unfolds itself in particular organs. The 
 efficient power present in the simultaneous plurality of 
 Eight, and consequently the Principle of the system, 
 gives the subject - matter whose inequality has to be 
 overcome by Eight, with the resistance which it opposes 
 to the equalizing principle of right. It has already been 
 shown how the system of the Jural Eelationships and of 
 
THE SYSTEM AND HISTOEY OF EIGHT. 125 
 
 Rights themselves, arises out of the operation of this 
 power. 
 
 It is only the systematical knowledge of Eight that 
 can be regarded as complete knowledge of it. This is 
 seen, in tlie first place, extevTially, as this kind of know- 
 ledge alone contains a guarantee of certainly embracing 
 ' all the parts of the system of Right in itself. Were we 
 to regard the Science of Eight as a mere aggregate of 
 jural propositions, we would never be certain that we 
 had made it our own in its whole extent ; just as part 
 of a heap of stones may be wanting without the spec- 
 tator becoming aware of the defect, whereas when they 
 are built into a work of art, a single stone cannot be 
 awanting without the blank thus occasioned becoming 
 immediately manifest. And so it is, conversely, in 
 reference to the precise determination of the outline of 
 the whole. Again, when looked at internally, such 
 systematical knowledge is alone entitled to be regarded 
 as complete knowledge ; because Right itself forms a 
 system, so that it is only in the knowledge of it as such 
 that its nature is perfectly understood. Now, this syste- 
 matical knowledge can only be attained by those who 
 have mastered the connection of the Principles of Right, 
 and investigated their relationship to each other, so that 
 they are able to follow out the genealogy of every con- 
 ception involved through all the connecting members, 
 upwards or otherwise, that influence their formation. 
 Thus, if we have to consider the particular right to go 
 through a field which the owner of that field has 
 assigned to the owner of a neighbouring field, we must 
 as jurists take cognizance of its position in the system of 
 jural relationships as well as of Eights; and therefore 
 we must review its derivation from the conception of 
 
126 JURISPEUDENCE AS A SCIENCE. 
 
 Eight, so that we may be able to descend from this 
 general conception to the individual right in question, as 
 its nature can only thereby be perfectly determined. It 
 must be reviewed in a series of connections, as for instance: 
 it is a right, therefore it is a power over an object ; it is a 
 right in a thing, therefore it participates in the special 
 nature of a real right ; it is a right in a thing belonging 
 to another, therefore it is a partial subjection of the 
 thing ; the side on which the thing is subjected is that 
 of its use, therefore it belongs to the species of rights 
 relating to the use of things ; this use is destined for a 
 certain subject, and goes no farther, therefore the right 
 is a servitude ; it relates to a field, therefore it is a 
 predial servitude ; it is to be used for the particular 
 requirement of a field, and it is therefore a servitude of 
 way. This I call a genealogy of jural conceptions ; and 
 the designation implies that such a series is not to be 
 regarded as a mere scheme of definitions. Each of these 
 conceptions forms a vital element in the system, and is 
 not a mere dead product that only carries on what it has 
 received. Every element in the system has an indi- 
 viduality of its own distinct from the individuality of 
 the elements that produced it ; and we may figuratively 
 regard these as the parents from which it derived a new 
 and peculiar vitality of its own. To continue the simile : 
 the principle of right may be regarded as the father of 
 the jural Institutions, and the matter presented in the 
 multiplicity of men and things may be regarded as their 
 mother. In the latter constituent lies the element of 
 necessity that is involved in the jural formations ; it 
 constitutes their rationality, and produces the qualifica- 
 tion of Eight as a system. Nor is it merely the 
 knowledge of individual rights in their true nature and 
 
THE SYSTEM AND HISTORY OF EIGHT. 127 
 
 meaning that is obtained from the consideration of the 
 System. The connection of several rights under a jural 
 relationship, the influence -which they exercise upon one 
 another, and the modification which they undergo from 
 their reciprocal interaction, can only be comprehended 
 in a complete and reliable form by means of the 
 systematical knowledge of right as a whole. 
 
 34. The Historical Knowledge of Right. 
 
 The History of Eight as a representation of its succes- 
 sive and manifold forms in time, has likewise a twofold 
 direction. The organism develops and changes itself 
 partly as a whole and partly in its several members. 
 Hence, every member, while possessing its special life 
 :which is yet essentially connected with that of the whole 
 and inseparable from it, has also a history of its own ; 
 and this history has grown up in internal connection 
 with the history of the whole organism. 
 
 Thus we have to distinguish the History of Eight as a 
 whole into two departments : the History of Eight as a 
 whole, and the History of the individual members of 
 Eight. The former has been called the external history 
 of Eight, and the latter the internal history of Eight. 
 These expressions, however, may very easily lead to 
 misunderstanding, if they be taken to mean that the 
 external history of Eight has to do merely with what is 
 outward and accidental in Eight, and only the internal 
 history has to do with what is inner and essential. 
 Further, the designation History of the Sources of Eight 
 has also been used for the so-called external History of 
 Eight ; but this is much too limited an expression for the 
 designation of its subject. 
 
128 JURISPRUDENCE AS A SCIENCE. 
 
 The object of the first part of the History of Eight is 
 the successive Movement of Eight through those consti- 
 tuent elements, which are the essentials of the whole 
 System. It embraces the genesis of Eight, and conse- 
 quently the nature and operation of the Sources of Eight, 
 the life of Eight in the consciousness of the People, the 
 Institutions established for its maintenance, its partition 
 into Private Eight, Public Eight, and Ecclesiastical Eight, 
 and the Eelationships of these parts along with the 
 general character of the System as the Eight of a par- 
 ticular people. The history of all these points falls 
 properly within the first division of a History of Eight, 
 which is therefore by no means to be limited merely to 
 the Sources of Eight. Such a limitation of it, however, 
 has been made by those writers who have undertaken a 
 representation of the so - called ' External History of 
 Eight ' as merely a history of its Sources, but in fact 
 the limitation has been seldom or never carried through. 
 
 In earlier times, the so-called External History of 
 Eight was called Historia Juris, that is, simply the 
 ' History of Eight ; ' and when correctly understood, this 
 was not unsuitable. But the inner history was then 
 added to it as the Antiquitates Juris or ' Legal Anti- 
 quities,' and the expression thus received an improper 
 application, as if only the first part of the history of 
 Eight was to be regarded as real history. But the 
 antiquarian conception is so far from coinciding with the 
 idea of history, that it is rather the very opposite of it ; 
 the distinction between them being that the former does 
 not regard the subject-matter as in movement, but as at 
 rest. From this difference there follows a difference in 
 regard to their objects. Antiquarian investigation is 
 limited to antique and past facts or states; historical 
 
THE HISTOKY OF EIGHT. 129 
 
 inquiry has to do with the present as well, only it views 
 it in connection with its growth. Jural Antiquities, 
 therefore, present us with a picture of the state of Eight 
 in any past time, without telling us how it arose, and 
 what came out of it ; whereas this latter consideration is 
 a distinct problem of the History of Eight. Antiquarian 
 inquiry is thus an indispensable auxiliary of history ; but 
 it is not history itself. 
 
 Further, the name 'Legal Antiquities,' when appUed 
 as a designation for the History of Eight, or a part of it, 
 is more than an error of expression ; for it has, in fact, 
 gone hand in hand with a false treatment of the subject. 
 The great advantage which antiquarian inquiry might 
 otherwise yield to the historian, has thereby not seldom 
 been lost. The histories of Eight were not merely 
 named ' Legal Antiquities,' but they were really nothing 
 else. While the intention actually was to treat Eight 
 historically, and the inquirer thus imagined that he was 
 satisfying his scientific conscience as well as his wants, 
 our scieirce actually came to be for a certain time entirely 
 without history, which it cannot really dispense with. 
 Even in our own day, there are still some in whom the 
 after-pains of that confusion are still manifest. They 
 either regard themselves as historians of Eight, because 
 they can boast of a certain industry directed upon the 
 facts of the past ; or they declaim against the history of 
 Eight in terms which ought only to be directed against 
 the entirely opposite prosecution of an exclusively anti- 
 quarian treatment of the subject. 
 
130 JUEISPEUDENCE AS A SCIENCE. 
 
 C. — OBJECT OF JURISPRUDENCE AS THE SCIENCE 
 OF RIGHT. 
 
 35. The National Character of Jurisprudence. 
 
 It has already been observed that Jurisprudence as 
 the special science of Eight, deals with Eight as the 
 system of a particular people as such ; and that it only 
 goes beyond the limits of this people in so far as its 
 system of Eight has likewise passed beyond them. 
 
 By this limitation, Jurisprudence is not only distin- 
 guished from the Philosophy of Eight, but it thereby 
 receives to a certain degree a national character. It 
 thus becomes Eoman Jurisprudence, or German Juris- 
 prudence, or English Jurisprudence, and so on. We 
 speak indeed of a Greek, or German, or English Philo- 
 sophy ; but this is either done merely to designate the 
 representatives of these systems collectively, just as we 
 designate an individual system by the name of its 
 founder, or these expressions are used to indicate a 
 certain modifying influence of nationality upon the 
 systems. Hence, in the philosophical sphere, it is an 
 imperfection which is thus indicated by designations 
 which are contrary to the real nature of philosophy, 
 although not entirely exclusive of it. But, on the 
 other hand, the expressions Eoman Jurisprudence, Ger- 
 man Jurisprudence, and such like, connote an influence 
 of Nationality, which is by no means accidental, but is 
 involved in the nature of the thing itself. 
 
 The activity of the Jurist is consequently directed 
 specially to the jural system of his own country. In 
 this lies the directly practical significance of the Science, 
 
OBJECT AND CHAEACTEE OF JUEISPEUDENCE. 131 
 
 and this is specially accentuated in the term 'Juris- 
 prudence.' 
 
 The contents of every science must admit and even 
 require an application to life. In the case of certain 
 sciences, however, this application is only indirect. 
 These are the universal Sciences which have to be 
 applied through their particular branches ; and such 
 indeed is their nature, that they would be vitiated by 
 being themselves directly applied to practice. This has 
 not seldom been the experience of Philosophy, when the 
 philosophers, instead of keeping it to its proper function 
 of giving a definite conception to the highest interests of 
 man, and thereby giving weight and authority to Science, 
 have preferred to found States, to sketch Law-books, or 
 to establish a Keligion. On the other hand, Jurispru- 
 dence would lose itself in the opposite way, if it did not 
 keep the consideration of its immediate influence upon 
 life continually in view. 
 
 Certainly nothing could be more erroneous than to 
 understand this practical relation to be such that Juris- 
 prudence should occupy itself with nothing but the 
 consideration of the details of the jural propositions 
 which can be directly applied to our present life. It is 
 true that this practical tendency must be recognised by 
 the Jurist in all its extent, and he must be guided by 
 this thought towards his ultimate goal in all his investi- 
 gations ; but he is not on that account to limit himself 
 to the mere enumeration and handling of practical details. 
 Such a view of Jurisprudence is quite erroneous, for it 
 would thus be made quite impossible as a Science ; and 
 any one who held it would be unable to give a reason- 
 able answer to the question as to where the Jurist could 
 then obtain his jural positions. Such a ' practical ' view 
 
132 JURISPRUDENCE AS A SCIENCE. 
 
 of Jurisprudence might be illustrated by taking the case 
 of a fruit-gardener, and supposing that because his work 
 is directly ' practical,' he should have nothing else to do 
 but plant trees with ripe fruits upon them ; and if the 
 question were raised as to where he could get them, he 
 was referred to a neighbour who had some in his garden. 
 
 Relation of Modern Jurisprudence to the Roman Law. 
 
 If Jurisprudence has for its object the jural system of 
 a particular people, as has been shown, this is not to be 
 understood as meaning that any Modern System is to be 
 taken entirely by itself, and out of relation to the Systems 
 of all other nations, so that what is common to them 
 could only be sought in Pliilosophy. For in the systems 
 of all those peoples which have had a common origin 
 there is naturally something in common, which establishes 
 a connection likewise in their Jurisprudence or Science 
 of Eight. And still more, all the European nations and 
 their branches beyond the European continent, possess in 
 their spiritual inheritance from antiquity a certain common 
 good by which their scientific activity is held together in 
 the sphere of Jurisprudence. This is the System of the 
 Eoman Law ; and the influence which it has directly and 
 indirectly exercised upon the rights of the modem peoples 
 is more than anything else the element which connects 
 their Systems of Jurisprudence. 
 
 The System of the Eoman Law has therefore a twofold 
 significance. In the first place, it forms an extremely 
 important part of our modern system of Eight. This 
 holds true whether it is still formally valid or has 
 assumed a new form in the modern legislations, whose 
 substance at least is to a considerable extent derived from 
 
EELATION TO THE EOMAN LAW. 133 
 
 it, especially in the department of Private Eight. And, 
 secondly, the Eoman system forms the medium of a 
 community of Eight between different countries. With- 
 out divorcing it from its national basis, the Eoman Law 
 thus gives to our Science a significance extending beyond 
 the limits of any particular people. Thus does this most 
 national of all sciences follow the powerful tendency 
 towards spiritual intercourse among the nations. A sure 
 foundation is thus laid for it, which at the same time 
 prevents this modern impulse from degenerating into a 
 mere borrowing of alien peculiarities, that in time would 
 make the rights of the nations a common patchwork 
 worked together from portions of all their systems. 
 
 There are certain Jurists who aim at entirely suppress- 
 ing the Eoman elements in our modern systems of Eight 
 in favour of what is properly national, or at least who 
 strive to subordinate them entirely. They may be com- 
 pared to those who think that the salvation of modern 
 Art is to be attained by abandonment of the antique, or 
 who see in the study of the Greek masters only the 
 corruption of modem poetry. Such thinkers must view 
 history as but a sepulchral vault, in which the peoples 
 that have passed away lie entombed with all the results 
 of their spiritual life so as no longer to influence the 
 after world. They must at the same time regard the 
 community of the contemporary peoples, as well as the 
 successive connections of the past, as an evil. They must 
 also hold that the greatest possible isolation of a people 
 from both the old world and the new, would be its 
 highest good. And this would be their view, even if 
 their object was to enable our native aboriginal Eight to 
 acquire the universal supremacy which the Eoman Law 
 has occupied for about eight hundred years. 
 
134 JUEISPEUDENCE AS A SCIENCE. 
 
 The true method of treating the Eoman Law in its 
 relation to our present Jurisprudence will be that which 
 corresponds to its twofold significance, as already in- 
 dicated. It should be treated as a part of the Eight of 
 the particular people by which it is received, and in so 
 far as it is the universal Eight of the civilised nations. 
 This implies that it should be regarded as having actually 
 passed beyond the boundaries of the nation in which it 
 arose, and therefore due prominence should be given to 
 those elements which have bestowed upon it this univer- 
 sal significance. And this further implies that we are 
 not to be the slaves of the letter of the Eoman Law, just 
 as little as in our Art we have to reproduce the Greek 
 temples and statues, or merely to copy the poems of the 
 ancients. We ought to be freed from the letter of the 
 system, that we may be filled with its spirit. 
 
 It would be a mistake, however, to believe that this 
 scientific freedom in dealing with the subject can be 
 obtained without examining the Eoman Law as it existed 
 among the Eomans themselves. Only from some living 
 intercourse with this system of Eight in its original home, 
 will any one be able to pass with it beyond its first limited 
 domain. This is, in fact, the training school which the 
 scientific Jurist must pass through, as the Artist has to 
 commence with imitation of his models and masterpieces. 
 This training will begin to animate him with the very 
 spirit of the future, for which it has to prepare him ; but 
 it must not attempt impatiently to transfer the harvest 
 to the season of the seed-time. 
 
NOTE ON THE STUDY OF THE EOMAN LAW. 
 
 Puchta's ' EncyclopsBdia,' as translated in the preceding pages, 
 was designed not only as a General Introduction to the Study 
 of Jurisprudence, but as a Special Introduction to the Study of 
 the Eoman Law. Hence it was afterwards prefixed to his 
 admirable Cursus der Institutionen, in which the History of the 
 Eoman Law is combined with an exposition of the Institutions. 
 The special consideration of the Eoman Law does not fall 
 within the scope of this general Outline of Jurisprudence, but 
 the Student wUl find ample and convenient guidance to the 
 subject in any of the following works : — 
 
 Professor Muirhead's Historical Introduction to the Private Law of 
 Rome. Edin. 1886. 
 
 Professor W. A. Hunter's Introduction to Eoman Law, 1885 ; and his 
 Systematic and Historical Exposition of Koman Law, in the order of 
 a Code. 2nd ed. Lond. 1885. 
 
 Lord Mackenzie's Studies in Roman Law, with Comparative "Views of the 
 Laws of France, England, and Scotland. 4th ed. by Professor Kirk- 
 patrick. Edin. 1876. 
 
 T. C. Sandars' Institutes of Justinian. Text, Translation, and Com- 
 mentary. 7th ed. 1883. 
 
 Professor Muirhead's Institutes of Gains and Rules of Ulpian. 1880. 
 
 E. Poste's Gaius' Elements of Roman Law. 2nd ed. 1875. 
 
 Dr. C. Salskowki's Roman Private Law, with Catena of Texts. Trans- 
 lated by Whitfield. 1886. 
 
 The juristic Literature on the Eoman Law is so immense 
 that it is impossible to do more here than merely refer to these 
 Introductory "Works. The Student will find a useful list of 
 Authors prefixed to Lord Mackenzie's Studies, and references 
 to the more recent Continental Literature, in Professor Muir- 
 head's Introduction. — ^Tr. 
 
PAET II. 
 
 SYSTEM OF JURISPRUDENCE 
 
 A SCIENTIFIC OEGANISM. 
 
 Dk. alexandee feiedlandee. 
 
 Eranalatei from tt)« ®erman. 
 
^fttion Sit&t. 
 
 THE OEGANISM OF JURISPEUDENCB AS A SCIENCE 
 m ITS EELATIONS AND MEMBERS. 
 
 1. The Science of Man. 
 
 1. Man may be viewed as a product of Nature, and 
 in this connection the scientiiic knowledge of Man is 
 embraced within Natural Science, as human Biology or 
 Physiology. But Man is distinguished from the other 
 living creatures by his Spiritual nature, and the study of 
 the human mind or spirit is what properly constitutes 
 the Science of Man, or Anthropology properly so called. 
 While Logic and Metaphysics may be viewed as the 
 formal and universal Sciences of Knowledge, the Mental 
 Sciences have to deal with the operations and activities 
 of the specific nature of Man as a spiritual being. The 
 Mental Sciences are divided into Psychology, Ethics, and 
 j^lsthetics. 
 
 I. Psychology is the science which investigates the 
 laws according to which the operations of the human 
 Mind are carried on. It is otherwise called ' Pneuma- 
 tology,' 'Phenomenology,' 'Nomology,' or 'Psychical 
 Anthropology.' 
 
 II. Ethics is the science which teaches how the 
 mutual relations of men that arise out of their personal 
 activities, are to be brought into harmony. It is other- 
 
140 SYSTEM OF JUEISPRXIDENCE. 
 
 wise called 'Practical Philosophy' or 'Humanistic 
 Science.' 
 
 III. Esthetics, or the theory of Art, is the scientific 
 representation of the laws by which man reproduces the 
 relations of the world in free [beautiful] forms so as to 
 be perceivable by the senses. 
 
 2. The present state of these branches of science, is 
 the result of the labour of many years. Their contents 
 can only be properly viewed and understood, when it has 
 been seen how far our knowledge has been advanced by 
 the science of the past, and what there is still remaining 
 for us to do in connection with them. In other words, 
 we can only bring unity into the scattered details of 
 knowledge, after following the course of its historical 
 development. 
 
 2. Eelations of Jurisprudence as a Science. 
 
 Jurisprudence is a branch of Ethics. Its function as 
 a science is to establish the essential priuciples of 
 BigM ; and as Eight only obtains reality among men who 
 are united into a State, it has also to establish the funda- 
 mental principles of the State. It is thus the Science 
 of Eight and of the State, that is, Jurispeudence proper 
 and Politics. 
 
 The State is the necessary unity of all the relationships 
 of life that rest upon the consciousness of men ; and it is 
 therefore a rational organism. Hence it is, like reason 
 itself, an original fact and an essential condition of 
 human existence. The Science of Eight and of the 
 State, cannot then begin with the investigation of a con- 
 dition of human life lefore the State, or of a so-called 
 state of nature (Metapolitics). Such a state, unless we 
 
THE ORGANISM OF JUKISPEUDENCE. 141 
 
 understand by it only a condition of savage animalism, 
 has never existed in fact. There have always been 
 political Institutions in less or more developed forms, 
 according to the stage of civilisation ; and the theory of 
 a state of nature in which the individual was his own 
 master in the relations of Right and Wrong, is a fiction. 
 
 Hence we can only think of men as beings living in 
 community with each other; and as the State is the 
 completest expression of such a union of men, it ought to 
 contain and realize everything that makes man, man. 
 The State ought therefore to be the kingdom of moral 
 freedom. — Hence all the relationships of life are em- 
 braced in the State, and it ought to secure to Man his 
 right in these relationships. In the most comprehensive 
 sense of the term. Eight is thus nothing but the sphere 
 in which the free development of every individual is 
 realized. It thus includes what is called subjective 
 right, title, or claim. 
 
 3. Division and Principles of Jurisprudence. • 
 
 The State, viewed as a whole, is, as Aristotle says, 
 higher than its parts ; but it has only existence as a 
 whole in so far as its individual members exercise their 
 power independently within the whole. The basis of the 
 State is therefore found in the freedom of the Person, and 
 personal freedom is therefore also the principle under- 
 lying the scientific representation of the State. All men 
 are Persons, or in other words, they have the power of 
 self-determination as the possibility of maintaining and 
 developing their existence. This principle forms the 
 starting-point of Jurisprudence as a science, and is the 
 basis of its division into Public Right and Private Bight. 
 
142 SYSTEM OF JUEISPEUDENCE. 
 
 I. PRIVATE RIGHT. 
 
 Peivate Eight, called also ' abstract, formal Eight,' is 
 the, object of that department or branch of Jurisprudence 
 which has to deal with the mere universality of the 
 person as such, without regard to any special individual 
 differences. The contents of the subject of Private 
 Eight are constituted by what is viewed and designated 
 as 'Mine' and 'Thine.' That only is mine, however, 
 which can be mine, and therefore this sphere embraces 
 the objects of the world of sense, or what are expressed 
 generally as Things. The relations of men to Things, 
 have to be constituted in accordance with Eight, and 
 it is therefore the function of Eight to regulate these 
 relations. The subject of Private Eight, is accord- 
 ingly subdivided into — A. Real Eight, and B. Personal 
 Bight. 
 
 A. ' Eeal Eight,' as it is called, or ' Eights in Things ' 
 or ' Eights of Property ' {Jura in re), as a separate divi- 
 sion of Eight, contains the sum-total of the jural relation- 
 ships which arise out of the subjection of Things under 
 our Will. Upon these jural Eelationships are founded 
 the ideas of Possession and Ownership. 
 
 B. ' Personal Eight,' as it is called, or ' the Eight of 
 Contract and of Obligation' {Jus ad rem, OUigatio), includes 
 the whole of the jural relationships which arise from any 
 union of the wills of two persons. 
 
 This division into ' Eeal Eights ' and ' Personal Eights ' 
 is the traditional one, but it is erroneous, since Eight can 
 only exist between Personalities ; and a Thing can never 
 have a Eight. 
 
THE OEGANISM OF JURISPEUDENCE. 143 
 
 It is to be observed, however, that while the abstract 
 Eight of the Person is the basis of Eight, it is not the 
 sole End and Object of Eight. This abstract freedom of 
 the Person is hollow and empty in itself, because it only 
 includes the fact that man has obtained the possibility of 
 fulfilling the real conditions of his personality, by sub- 
 jecting the things of the earth to himself as his goods 
 or possessions. This mere possibility, from its very 
 abstractness, does not suffice us. It is incomparably 
 more important still to make this possibility a reality ; 
 and this can only take place by securing to all the satis- 
 faction of their wants by the means that are at command, 
 whereby man as such, in all the fulness of his nature, is 
 put above the merely formal Person of Eight. But we 
 only become Men among men, or in society ; and real 
 freedom is only attained by us in union with others. 
 This consideration leads us to Public Eight as the second 
 division of the subject. 
 
 11. PUBLIC RIGHT. 
 
 Public Eight is the department of Jurisprudence 
 which deals with the union of men in Society as an 
 organic whole. 
 
 At the outset it may here be remarked that the 
 opposition between Private and Public Eight, is just as 
 unsatisfactory as the division of Eights into Eeal and 
 Personal, as already explained. In the strict sense of 
 the term there is no Private Eight as a Eight that is 
 absolutely and merely individual. Eight is always of a 
 universal nature, and hence it may be said that there is 
 no Eight which is not Public. The dichotomy of the 
 
144 SYSTEM OF JUEISPEUDENCE. 
 
 usual division has been borrowed from the Eoman Law, 
 and it has a correct meaning only in so far as by ' Private 
 Eight ' in the original sense of the term ' Jus privatum ' 
 (from privare), is understood that Eight which is related 
 to the ' naked Personality/ viewed as divested of aU other 
 human relations. 
 
 ' Public Eight,' as thus defined, includes the evolution 
 and establishment of those social institutions and rela- 
 tionships as elements in the formation of the people, by 
 which the independent existence of men is secured. As 
 it is not attached merely to the isolated individual, it is a 
 higher stage than what is called Private Eight, which is 
 not merged in the individual, but only obtains its true 
 significance in Public Eight ; for it is only in society that 
 the conditions requisite for the maintenance of the indi- 
 viduality are secured. The freedom of the person is 
 certainly to be kept in view in Public Eight also, as an 
 ultimate object, but it is not here regarded as having its 
 principle and end in an abstract, isolated individuaLLty. 
 It now becomes a freedom by which the individual enters 
 into union with others, gives up his mere self-seeking, 
 and helps to estabhsh the organization of the conditions 
 of society. — The relationships in which Public Eight is 
 realized are comprehended in — A. The Family, B. Civil 
 Society, and C. The State. 
 
 A. The Family is the first and the natural relation- 
 ship ia which we give up our formal individuality, and 
 gain in its stead concrete personality. It arises from 
 Marriage, which, in its essence and purpose, rests upon a 
 natural moral unity, and which, as a social institution, 
 falls under the domain of Eight. It gives origin to 
 (1) Family Bight, and (2) the Eight of Inheritance or 
 Succession, in so far as the dissolution of the family 
 
THE ORGANISM OF JUEISPKUDENCE. 145 
 
 comes into consideration. The Family stands upon 
 the boundary between Private Eight and Public Eight, 
 and thus forms the basis of Civil Society. 
 
 B. Civil Society is that union of men in which there 
 prevails a common interchange of activity, with a view to 
 the satisfaction of the physical and intellectual wants, 
 and to mutual protection. This Civil Society, however, 
 like all other forms of social union, has the character of 
 arbitrariness and of a merely external co-existence. It 
 is only in the State that the whole of the elements of 
 society are brought into a conscious unity, in accordance 
 with their conditions. 
 
 C. The State is the necessary rational unity of men 
 who dwell together in a particular region. A State is 
 inconceivable without Civil Society, just as a soul is 
 inconceivable without a body ; but the State is not there- 
 fore identical with Civil Society. I enter into a society 
 because I will to do so ; I enter into the State because I 
 must. A band of robbers might form a well-organized 
 society, but it would nevertheless not be a State. 
 
 The Social and Political Sciences. 
 
 The State is the reality in which the whole spirit of a 
 people lives. It must therefore contain everything that 
 is necessary to the existence of the people, and the study 
 of its various sides and elements gives rise to the various 
 Social and Political Sciences. 
 
 I. The State must include, within its sphere, the 
 means by which the physical life of its members is to 
 be maintained. The principles according to which the 
 production of these means is effected, and the welfare 
 of the individuals provided for, are treated as a system 
 
 K 
 
146 SYSTEM OF JUEISPEUDENCE. 
 
 in the Science of political economy or national 
 
 ECONOMICS. 
 
 II. The State must include the means by which the 
 spiritual life of the people is to be developed and main- 
 tained, and consequently it has to provide for the spiritual 
 welfare of its members by the requisite organization of 
 Education and Instruction. The most general designa- 
 tions for what is involved in this relationship, are the 
 School, the Chuech, and Science, and they are also to 
 be included in the Science of Society. 
 
 III. The State has further to provide for the care 
 and administration of Eight. In the bosom of Civil 
 Society there inevitably arise conflicts and disturbances, 
 interferences with person and property, and, in a word, 
 violations of Eight. Every such violation is a disturb- 
 ance of the social organism ; it is contrary to Eight, and 
 as such it is a Wrong. There must therefore be a power 
 constituted to remove Wrong and to realize Eight. This 
 power, as undisturbed by subjective influences and placed 
 in authority over particular cases, is embodied in the 
 Tribunals or Courts of Justice, and their function is to 
 administer Eight according to a settled process. As there 
 are two kinds of Wrongs, the Administration of Eight is 
 twofold. Thus there is first of all the so-called unin- 
 tentional or civil Wrong, by which Eight in general is not 
 knowingly and voluntarily violated as such, but there is 
 only involved an infringement of the private Eight or 
 property of some particular person. In the case of Civil 
 Wrong, I do not commit a Wrong, but I have in my 
 possession a wrong object. The dispute in such a case 
 only relates to the question as to whether a certain thing 
 is to be declared the property of one person or of another, 
 and the power of the Court is manifested by a process of 
 
THE OKGANISM OF JUEISPEUDENCE. 147 
 
 compulsion which, as an execution, alters the existing 
 state of things. The procedure which moves in such 
 cases within certain prescribed forms is called the Civil 
 Process; and the same term is applied to the branch 
 of Jurisprudence which has developed its principles 
 scientifically. The second form of Wrong is conscious, 
 intentional Wrong, as that by which Eight as such is 
 consciously negated. This actual opposition and contra- 
 diction of the law of freedom, by the will of the indi- 
 vidual, constituted a Crime. In this case the action of 
 the Court is expressed in the form of a compulsion applied 
 to the criminal will as a punishment. The procedure by 
 which this is effected is called the Criminal Process, or 
 the administration of Criminal Law ; and the branch of 
 the science which deals with it scientifically, bears the 
 same name. The judicial principles relating to crimes 
 and punishments, are thus expounded in the department 
 of Ckiminal or Penal Law. 
 
 IV. The State must further include the regulation of 
 Police. The department of the administration of Eight 
 is limited by the actual presence of Wrong, and it has, 
 as its object, the restoration of the relationships of 
 Eight, when they have been disturbed. There is thus 
 required another institution in relation to the more 
 negative side of the common weal, with a view to ' the 
 possible Wrong which, without yet being real wrong, is, 
 however, its real possibility as shown by experience.' 
 This then gives rise to the department of ' Police ' in 
 the State, and by its very nature its activity is very 
 comprehensive, and such as may be easily abused in 
 practice. Hence it is not to be extended too far, but 
 rather to be limited to the most necessary regulations, 
 and to such as are the least prejudicial to the common 
 
148 SYSTEM OF JUEISPRUDENCE. 
 
 liberty. Its proper sphere has been determined to be 
 the removal of whatever may involve danger in the com- 
 munity, while the prevention of disturbances of Eight 
 that may threaten to arise from the wrongous will of 
 individuals, has been assigned to another arm of the 
 public power, the so-called preventive administration of 
 Justice. These two spheres have also been separated in 
 the scientific treatment of the subject. 
 
 V. Public political Eight is represented in the 
 organization which the State possesses as a living organic 
 whole. The elements of Civil Society already referred 
 to, as in effect realizing the conditions of independent 
 existence, have their proper centre in the fact that they 
 arise out of the consciousness of unity. But Civil Society 
 itself loses the character of a merely external union, and 
 of being a mere aggregate of men, and assumes that of 
 a common personality as the union of the People in the 
 State, which is a unity that is practically effective in 
 realizing our independence of existence. The existence 
 of the State as inseparable from our free moral existence, 
 is thus itself an End. The State is one with our life, 
 and its very existence also constitutes its Eight. Thus it 
 is that Public Eight arises, and it is divided into — A. The 
 internal Eight of the State, and B. The external Eight of 
 the State. 
 
 A. Internal State Bight is a system of principles which 
 relate to the internal relationships of the State. It 
 essentially embraces the consideration of five relations. 
 1. Constitutional Eight is the doctrine of the power of 
 the State. 2. The Eight of Government, or Administra- 
 tive Eight, gives the doctrine of the guidance of the 
 activity of the State. 3. The State, viewed as an indi- 
 vidual, requires the means conducive and necessary to 
 
THE ORGANISM OF JURISPRUDENCE, 149 
 
 the ends of Government. Hence there arises a third 
 integral part of State Eight as contained in the doc- 
 trine of National Economy or Public Finance. It includes 
 the scientific establishment of those principles which are 
 related to the procurement and expenditure of the material 
 means that are required to satisfy the wants of the State. 
 It is therefore a department of Political Science properly 
 so called. 4. But in order that a State may continue 
 to exist, an exact knowledge of its actual condition of 
 life, of its powers and wants in all their extent, is con- 
 tinually requisite. It is thus that the strength and 
 tendency of these wants are realized, and that provision 
 is made for further development. Such a representation 
 of the State at any particular moment of time, is sketched 
 by the department of Statistics, as the science of. the con- 
 ditions of the State in their present existence. 5. To 
 these four branches a fifth has still to be added, under 
 the general name of Politics. In its original meaning, 
 this term coincided with the Science of Eight and the 
 State, as defined above, and with their several branches. 
 But if we understand by it an outline of the political 
 conditions existing in the civilised world with an ex- 
 amination and estimate of them in relation to the purpose 
 of the State and their influence upon the present, this 
 division of the subject will belong to Universal History. 
 
 B. External State Bight, or International Bight, may 
 be briefly indicated. The State, viewed as an individual 
 organization, stands related to other States. States are 
 jural Persons, and the Eelationships arising from their 
 co-existence must be of a jural nature, as is the case 
 with the relations of individual persons within the State. 
 These relations of Eight between the several peoples thus 
 form the object of Public International Eight. 
 
THE ORIGIN AND DEVELOPMENT OE EIGHT. THEOEY 
 AND PEACTIGE. HISTOEY OF EIGHT. 
 
 1. Origin and Development of Eight. 
 
 1. The destination of man is to realize and develop 
 freedom. Freedom, however, becomes truth when it is 
 practically translated into life ; and this is done by man 
 through the power of his self-determination when he 
 realizes himself as the centre of the world, and strives 
 to comprehend it in thought. Man comprehends the 
 world when he understands the relationships of things to 
 one another and their origin. 
 
 2. Eight is a formation of the relationships of life 
 with a view to the attainment of freedom. It is by 
 Eight that we become free, and we ought therefore to 
 will what is right. Eight thus comes necessarily into 
 existence as soon as men live together. 
 
 3. As regards its origin. Eight is therefore neither 
 the product of accident, nor of human arbitrariness, nor 
 of an abstraction drawn from life. It is that relation 
 of the human spirit of which the actual conditions 
 of human Existence are the material, and the forma- 
 tive element of which is the will of the People realizing 
 and comprehending itself in its unity. 
 
THE ORIGIN AND DEVELOPMENT OF RIGHT. 151 
 
 4. The consciousness of the people is the source of 
 Eight, hut as consciousness merely it has stUl no real 
 existence. It attains to reality only when this con- 
 sciousness is externalized, that is, when the relationships 
 of life are regulated in accordance with common conviction. 
 Hence, in order that Eight may attain reality and truth, 
 it must be externalized and expressed ; or, in other words, 
 it must become objective positive Bight. 
 
 5. The form in which the Eight established by a 
 people enters iuto life, is twofold. (1) In the first place, 
 the Will of the people may express itself directly in 
 external actions and thus become real, by all the mem- 
 bers of the people recognising a jural conviction in a 
 continuous Usage. The Eight which manifests itself in 
 this form is called Customary Right (jus non scriptum). 
 ' Eight as thus manifested has not yet the spiritual form ; 
 it is the immanent rule of conduct.' Hence Customary 
 Eight flourishes at its fullest in the youthful life of the 
 peoples and in the still undeveloped State. (2) But again, 
 the will of the people may also externalize itself in such 
 a way that abstract rules for jural conduct are expressly 
 laid down as the Eules for the life of the people, and 
 they are thus incorporated in words. The Eight that 
 manifests itself in this form, is called Legal Bight (jus 
 scriptum). 
 
 6. To these two forms of Eight, some have also added, 
 as a third form, the 'Bight of Science! or as it is called 
 from those who represent it, 'Juristic Bight' (Communis 
 opinio doctorum and usus fori). But we regard this 
 as an erroneous view. We consider that the science, 
 viewed both as the theory of Eight and its application 
 in practice, has no other function than to ascertain by 
 interpretation what is contained in the existing laws of 
 
152 SYSTEM OF JUEISPEUDENCE. 
 
 Eight. 'In its activity science does not include the 
 forming of Pdght, just as little as the miner forms the 
 ore which he brings from the interior of the earth to 
 the surface.' The results of a scientific investigation of 
 Eight may indeed in a certain way obtain authority, and 
 the decisions of the Courts may acquire the power of an 
 independent source of Eight. But in either case this 
 can only happen when they express what has been formed 
 as a jural conviction among the people in narrower or 
 wider circles, and when they are therefore the repre- 
 sentatives of customary Eight (Observance, Precedent). 
 
 1. The people being the former of Eight, and every 
 people being regarded as an individual, since every indi- 
 vidual has a distinctive character, the characteristics of 
 the people will also show themselves in their System of 
 Eight. The Eight of a people is thus an integral con- 
 stituent of their life, like their Language, Morals, and 
 Government. Every form of Eight thus becomes in its 
 expression, National Bight. Although the idea of Eight 
 is the same among different peoples, yet the course of its 
 formation stands under the influence of cosmical and 
 terrestrial conditions. 
 
 8. A people may be regarded as a natural whole, and 
 from this point of view its system of Eight also exhibits 
 itself as common to it as a whole (Jus commune). But, 
 again, viewed as a living organism, narrower circles 
 within it may produce a particular mode of Eight (Jus 
 particulare). 
 
 9. Eight is a product of the Will of the people. The 
 people, however, can only will what corresponds to their 
 stage of culture and their requirements at a particular 
 time. Hence Eight receives a development in space and 
 time. It has a history, because it is practically realized 
 
THE ORIGIN AND DEVELOPMENT OF EIGHT. 153 
 
 by man. ' There is an unfolding of its nature, in which 
 it maintains its identity under change.' 
 
 1 0. Hence, in order to understand the present position 
 of a people as regards its life in the sphere of Eight, and 
 in order to obtain an insight into what it should and 
 must will in Law, an exact examination of the historical 
 process through which it has lived is requisite. 
 
 11. Every people participates in the development of 
 Eight, and in this, as in everything else, it presents an 
 image of Humanity in miniature. Eight thus lives in 
 every people, and completely in all the peoples. The 
 chief efficient element in the creation of Eight will, for 
 the most part, lead to harmonious results, and the his- 
 torical agreement in consequence will be so much the 
 richer, the more the conditions exist that are conducive 
 to a congruent development. 
 
 12. The complete Science of Jurisprudence consists, 
 therefore, in the rational comprehension of the whole of 
 the conception of Eight as developed in time. In other 
 words, the whole of Jurisprudence is embraced in the 
 Universal History of Bight. This Universal History 
 gives a representation of the perpetual connection of the 
 formation, growth, and living principle of a people, and 
 shows, in fact, how the realities of Eight have been 
 organically developed' in the course of time in the pro- 
 gress of the world's history. 
 
 2. Theory and Practice. 
 
 The Science of Eight has to deal with the jural prin- 
 ciples that are recognised as authoritative in a State. It 
 has to make these principles its own in their whole 
 extent, and it does so by clearly and certainly grasping 
 
154 SYSTEM OF JURISPRUDENCE. 
 
 their internal connection and their significance for life. 
 Such a concrete development of positive Eight may be 
 called a Theory of Right. Its result is a System of juristic 
 Doctrine as the sum-total of the jural principles which 
 can be obtained from the jural and legal material that is 
 actually recognised in a particular State. As the Theory 
 in this way lays down principles to regulate the applica- 
 tion of Eight, it conceives concretely what is realized by 
 Practice in concrete facts. The Theory is the link 
 between the Law and the Practice of it ; by the Theory, 
 the Law is first really known in. Practice. Theory thus 
 gives expression to what is practical, and to what Practice 
 puts into application. What it has alone by itself, 
 without regard to the requirement of practice, is not to be ■ 
 regarded as right Theory. Practice needs concrete insight, 
 and it is the aim of Theory to give guidance and exem- 
 plification to it. 
 
 The distinction between Theory and Practice, thus 
 stated, is the only one that is founded on the nature of 
 the subject, and every other is erroneous. It follows 
 from it that, without scientific theory, there is no genuine 
 practice, and that right practice is never independent of 
 theory. This truth must be the more deeply impressed, 
 because the view is but too widely spread that practice 
 merely consists in an easy, superficial, and dexterous 
 manipulation of business forms ; and it is even held that 
 it is impossible to attain a scientific theory of Eight that 
 would be capable of embracing all the cases that might 
 arise in life. But although, when the term is taken in a 
 merely abstract sense, we must admit (with Goethe) that 
 ' grey is every theory, and green life's golden tree,' yet 
 we must also regard it as certain that true practice is 
 something else than a mere mechanical dexterity of 
 
THE ORIGIN AND DEVELOPMENT OF EIGHT. 155 
 
 forms, and that the routine lawyer stands in the same 
 relation to the truly practical jurist ' as the quack to the 
 physician, or the hodman to the architect.' In short, it 
 must be maintained that a sound system of jural doctrine 
 is not confined to the exposition of individual details, but 
 embraces the spirit of the laws in question, the animation 
 of the juristic sense, and the sure knowledge of guiding 
 principles. It is only those who possess such a sound 
 doctrinal system who will readily find themselves at 
 home in the sphere of the jural relationships, and who 
 will be able to follow them through all their details. A 
 good theoretical jurist is necessarily also a good practical 
 jurist. 
 
 The Science of Legislation (Jurisprudentia legislatoria) 
 is to be distinguished from the theoretical Science of 
 Eight, as having for its aim the practical removal of the 
 inconsistencies, defects, and wants discovered in the 
 existing legislative system. It is not to be viewed as 
 forming a separate science by itself, biit as belonging to 
 Politics in the sense in which that term has been used 
 above. 
 
 3. The History of Right. 
 
 A scientific Theory can never be established by merely 
 putting together the principles which find expression in 
 the existing system of Eight. For in order that it may 
 achieve what it ought to do, there is further required a 
 knowledge of the necessity according to which positive 
 legal Eight has obtained manifestation as such, under par- 
 ticular circimistances. The authoritative system that has 
 arisen, and which has found expression in the authorized 
 dogmas, is the last member of a chain of development 
 
156 SYSTEM OF JUKISPEUDENCE. 
 
 stretching through the past ; and hence it can only be 
 understood and explained by History. To those who 
 do not follow the development of positive Eight and 
 Law, and who withdraw themselves from the quickening 
 influence of history, the Legislation of the present, 
 as the last expression of the system, is but 'a book 
 with seven seals.' And as Law is only developed in 
 the State, all jural History is consequently also 'political 
 History. 
 
 History, however, is not a mere enumeration of facts 
 and of the consequences connected with them, or 
 mere pragmatic History. Nor is it a mere representation 
 of the external connection of the life of the People, but it 
 is the living image of the internal development of that 
 life. The study of such History ought not merely to 
 teach us that there is progress generally in the world, 
 but also how and why it takes place. It differs from the 
 mere soulless aggregation of different facts, by searching 
 into their ultimate reasons, and thus does the historical 
 spirit rise from mere details to the Philosophy of History, 
 the foundation of which is formed by the spiritual trea- 
 sures of the nations of all times and all climes. The 
 History of Law must be treated in this way. By its very 
 nature, as we have already seen, it becomes a Universal 
 History of Right ; ' for as the Philosophy of Language, as 
 the special science of speech, arises from a comparison of 
 languages, so does Universal Jurisprudence arise from a 
 comparison of the laws and jural customs of the nations 
 of all ages and countries, including those that are most 
 closely related as well as those that are most different 
 from each other. This Universal Jurisprudence is the 
 Science of Eight as such, without surname ; and it lends 
 its true vitality to every specially named department of 
 
THE OEIGIN AND DEVELOPMENT OF EIGHT. , 157 
 
 the Science of Law.' In the idea of a Universal History 
 of Eight, there is difficulty involved, but the necessity of 
 it is also implied. And its importance may be indicated 
 by the fact that in the unity of the System and the History 
 of Right, the truth of Jurisprudence as a Science is 
 realized. 
 
PAET III. 
 
 THE 
 
 SCIENTIFIC STUDY OF JURISPRUDENCE 
 
 ITS PRELIMINARIES, SPECIAL SUBJECTS, 
 MEANS AND APPLIANCES. 
 
 AN OUTLINE OF JTJEISTIO STUDY. 
 
 De. N. FALCK 
 
 SCranglatelr from tjjj ffierman. 
 
INTRODUCTION. 
 
 THE SCIENTIFIC STUDY OF JURISPRUDENCE 
 GENERALLY. 
 
 1. Jurisprudence distinguished as a Special Science. 
 
 Science in the objective and universal meaning of the 
 term, designates a body of connected truths methodically 
 arranged. The Sciences are divided theoretically into 
 several branches or departments, according to the different 
 objects of knowledge with which they deal. They are 
 also subdivided from practical considerations, because 
 they cannot be made the subject of fundamental study 
 in their whole extent. For although all the parts of 
 human knowledge stand in connection with one another, 
 and some of them hold very exact relations to each 
 other, it nevertheless becomes necessary for the individual 
 to limit his scientific activity in practice to particular 
 departments of knowledge. The idea of a particular 
 science thus arises whenever a separate part of the whole 
 sphere of human knowledge is made the principal subject 
 of study. Such a particular science is constituted by a 
 certain body of homogeneous truths, or certain details of 
 knowledge which are connected into unity by their rela- 
 tion to the same object. In this way the sum of the 
 knowledge which is related to Eight and Law, practically 
 constitutes the special science of Jueisprudence. 
 
 L 
 
162 THE SCIENTIFIC STUDY OF JUEISPRUDENCE. 
 
 2. Nature and Value of the Study of Jurisprudence. 
 
 The knowledge of legal Pdght, as is the case with 
 many other subjects, might be acquired by personal 
 observation and experience, and the reading of juristic 
 works. Among most peoples, however, a formal instruc- 
 tion in the subject of Law has been early introduced, 
 although it consisted more in a practical guidance and 
 training in legal matters than in theoretical discussions.^ 
 An important change took place with the institution of 
 special Schools of Law devoted to juridical instruction, 
 whereby education in the principles of Law took a wider 
 range, and a scientific treatment of Eight was intro- 
 duced. As the Sources of Law grew in extent, and the 
 principles of Right received further development, a formal 
 scientific communication of legal truths in books or 
 through Academic Lectures, became necessary. Yet even 
 in the present day this should not be considered as the 
 only right mode of learning Law, but a practical intro- 
 duction to the forms of business should rather be con- 
 
 ^ [Thus, as Cicero informs us, in Ancient Rome the boys were obliged to 
 learn the XII. Tables by heart, as a ' Carmen necessarium.' De Legg. 2. 
 23.] It is mentioned several times in the Sagas that the Icelanders and 
 Normans of good families in the 10th century, used to stay a whole winter 
 with persons skilled in Law, in order to learn the laws. The main object 
 of this instruction appears to have been to communicate a knowledge of 
 the formal solemnities that frequently occurred in their ancient system. 
 (Cf. Miiller's SagabibUothek, Copenhagen 1817, 1 Bd. 88.) — It was 
 always natural for fathers who were versed in Law, to seek to convey their 
 knowledge to their sons, and this was formerly common in Germany and 
 in all other countries. In Oefele's Serum Boicarum Scriptores (ii. 10), a 
 Count of Ebersberg (1029) is represented as saying : ' Sigebertus et Theo- 
 doricus ao deinde Carolus jura dictabant, quse si quis potens ac nobUis 
 legere ignoraret, ignominiosus videbatur, sicut in me et cosevisque meis 
 apparet, qui jura didicimus. Moderni vera Jilios suos negligunl jura 
 docere.' (Cf. Zschokke, Geschichte von Baiern, i. 174.) 
 
THE STUDY OF JURISPRUDENCE GENERALLY. 163 
 
 nected with it from the beginning. By the existence of 
 Faculties of Law, its study has become a principal and 
 even exclusive occupation, and their purpose and value 
 consist in qualifying their students by a fundamental 
 knowledge of Eight and Law, for the competent admini- 
 stration of justice. Such scientific study, also, in more 
 than one way prevents legal disputes on the principle 
 enunciated by Cicero : ' Potius ignoratio juris litigiosa est 
 quam scientia.'-^ The Study of Law, in common with 
 every genuine scientific effort, likewise occupies the 
 human mind in a worthy manner. Hence it cannot fail 
 in interest, unless it is limited to a mere knowledge of 
 results, and thus loses its scientific character. The 
 material advantages which may accrue from its study, 
 need not be adduced as a recommendation of it ; nor 
 should the possible dangers to the character of the indi- 
 vidual which are connected with the study or practice of 
 Law, be considered as detracting from its value. The 
 knowledge of these dangers, and the moral resolution to 
 be on guard against them, will infallibly be a sufficient 
 protection.^ If the judgment of the people regarding the 
 profession of the Jurists is wont to be unfavourable, it is 
 to be remembered that this may have been occasioned 
 partly by failings in the character of certain Lawyers, 
 and partly by the wish that human relationships should 
 not be made conformable to mere external Law. 
 
 1 De Legibus, i. 6. 
 
 ^ Thus we have the Roman formula : ' Dolus malus abesto et juris 
 consultus !' (Grater, Corp. Inscript. p. 662, 5.) So there is an expres- 
 sion in the Dig. L. 88, § 17. De LegatU, ii. ■ ' Hoc meum testamentum 
 scrips! sine ullo jurisperito, rationem animi mei potius secutus quam 
 nimiam et miserrimam diligentiam. ' — A saying of Luther gave rise to a 
 German Proverb that ' Jurists are bad Christians. ' But ia his Table-talk 
 (o. 88) there is an excellent eulogium on the Jurists. 
 
164 THE SCIENTIFIC STUDY OF JUKISPEUDENCE. 
 
 3. The Scientific Conditions of Jurisprudence as a Science. 
 
 Three things are requisite in order that the repre- 
 sentation of the rules of Law recognised in a country, 
 may really deserve the name of a Science. 1st, The 
 Principles of Eight and Law must be so completely 
 treated that no jural relation shall remain unexplained, 
 at least in its essential points. 2nd, The Grounds upon 
 which the jural truths rest must be convincingly 
 developed. 3rd, And finally, the arrangement of the 
 whole System must be carried out, even in its individual 
 parts, according to the principles of its internal essential 
 connection, and not merely in accordance with an arbi- 
 trarily chosen logical scheme. The scientific character 
 of the system consists in the union of these three 
 qualities: Completeness, Depth or Fundamentalness, and 
 Order. It has been held that all the various positions 
 of the science are to be referred to one supreme Principle 
 and deduced from it ; but we hold that in the case of a 
 science like Jurisprudence, which draws its material, in 
 great part, from experience and history, this is impossible. 
 More consideration should, however, be given than is 
 commonly done to the difference between Principles and 
 Inferences which as such have no independent existence 
 of their own ; and also between positive Principles of 
 Law and the natural Consequences that arise out of 
 jural Eelationships. These distinctions ought to be 
 carried throughout the whole legal System. Where the 
 system has sprung from various sources of Eight and 
 different Legislations, a complete treatment of the whole, 
 demands a previous scientific investigation of its several 
 constituent parts. But, on the other hand, it has to be 
 remembered that juristic study cannot actually begin in 
 
THE STUDY OP JUEISPEUDENCB GENEEALLY. 165 
 
 this way, since what is now recognised as valid right 
 must, in some measure at least, be known before the 
 process of its historical formation can be understood and 
 appreciated.-^ 
 
 1 [The following English works on the Scientific Study of Law may be 
 notified here for reference : — 
 
 [Sir 'William Blackstone, Commentaries on the Law of England, Sect. 
 I. On the Study of the Law. (Bead in Oxford at the Opening of the 
 Vinerian Lectures, 1758. Refers specially to the uses and history of the 
 Study of the Law of England. ) 
 
 [John Austin, Lectures on Jurisprudence, 4th Ed. Revised and Edited 
 by B. Campbell, 2 vols. 1879. (Student's Edition of Austin by R. 
 Campbell, 1875. An Analysis of Austin's Lectures, by Gordon Campbell, 
 1877. Clark's Practical Jurisprudence, a Commentary on Austin, 1883.) 
 Also Austin's Province of Jurisprudence Determined, 1832, etc. (See on 
 Austin's position the remarks in the Preface to this work. ) 
 
 [Samuel Warren, Popular and Practical Introduction to Law Studies, 
 3rd Ed. 1863. 
 
 [Of the numerous practical Guides to the Legal Examinations in Eng- 
 land, those of Shearwood and Slater may be referred to — Shearwood's 
 Student's Guide to the Bar, the Solicitor's Intermediate and Final and 
 Universities' Law Examinations, with suggestions as to the Books usually 
 read, by Joseph A. Shearwood, Esq., Barrister-at-Law, 1879. — Slater's 
 Guide to the Legal Profession, forming a Practical Treatise on the various 
 Methods of entering either of its branches, together with a Course of 
 Study for each of the Examinations, and full papers of Questions with the 
 Answers. A Complete Guide to every Department of Legal Preparation, 
 by J. Herbert Slater, Esq., Barrister-at-Law, 1884. 
 
 [The elegant and high-toned Introduction by the late Professor Allan 
 Menzies to his Lectures on the Scottish System of Conveyancing, may also 
 be commended to the young Student, who cannot be too early or too 
 deeply imbued with the spirit it breathes. — Tit,.] 
 
PEELIMINAEY AND AUXILIAEY STUDIES. 
 
 1. The preliminaries and auxiliaries of Jurisprudence 
 generally. 
 
 JUKISPRUDENCE, in the special sense of the term, 
 properly includes only what constitutes juristic truth, 
 and it is restricted by some to the exposition of those 
 positions whose observance is secured by the possibility 
 of coercion carried out by the State. In a wider sense, 
 however, Jurisprudence is also regarded as including all 
 the various kinds of knowledge that are necessary to the 
 Jurist which, although they may not directly relate to 
 juristic truths, are requisite either to a complete under- 
 standing or a proper application of the Laws, and which 
 are conducive to the improvement of the existing System 
 of Eight. 
 
 2. Auxiliary knowledge belonging to general Culture. 
 
 The scientific knowledge that is auxiliary to Jurispru- 
 dence can, in the proper sense of the term, only include 
 what stands in some immediate connection with Jurispru- 
 dence itself, or its application, and which therefore is to 
 be regarded as necessary for the investigation of the 
 positive rules of Law, or for the knowledge of universal 
 
PKELIMINAEY AND AUXILIAKY STUDIES. 167 
 
 jural truths indispensable to the Jurist in practice. But 
 it need hardly be said that all other kinds of knowledge 
 which can be acc[uired without prejudice to the main 
 object of study, will not only be harmless and pleasurable, 
 but will also be of advantage to the student of Law. 
 The Jurist ought therefore to apply himself to the 
 acquisition of those kinds of knowledge which are rightly 
 expected to be possessed by every educated man, not 
 merely for the sake of external appearances, but from 
 special regard to the difficulties and dangers to which the 
 Jurist is most exposed in his professional practice and 
 business life. It is also proved by experience that those 
 universal kinds of knowledge which belong generally to 
 human Culture, conduce to further the study of Jurispru- 
 dence as a science, and facilitate its practical application 
 in professional matters. Among such subjects of Gene- 
 ral Culture, the young student of law may be recom- 
 mended, above all things, (1) to acquire a thorough 
 knowledge of his own Language, and an accurate 
 dexterity in using it ; (2) an acquaintance with the 
 Classical Literature of his country ; (3) and the acquire- 
 ment of the most important Modern Languages, with 
 some knowledge of the best works contained in their 
 literature.* It is right also to regard an exact knowledge 
 
 ^ [These preliminary requisites to any competent scientifio study of 
 Law are too obvious to require illustration, but the guardians of the 
 highest and widest interests of the Legal Profession cannot be too keenly 
 alive to their importance. Without substantial knowledge of the kinds 
 indicated, no real progress or high attainment in Jurisprudence, can 
 possibly be realized. Works on the English Language and Literature are 
 so numerous and so well known that they need not be particularized. 
 Study of the Modern Languages should be carried as far as a working 
 knowledge of French, German, and Italian. The importance of French 
 and German is universally recognised, but the Jurist will also find most 
 important material in Italian in every department of his science. — Te.] 
 
168 THE SCIENTIlflC STUDY OF JURISPRUDENCE. 
 
 of Eeligious Truth with a well-grounded religious convic- 
 tion as an essential part of a universal Culture, and the 
 acquirement of this knowledge and conviction should not 
 be neglected by the Jurist/ who ought to strive not 
 merely after those kinds of knowledge which merely give 
 a certain brilliancy in society, but rather after such cul- 
 ture as corresponds to the essential requirements of the 
 human spirit. 
 
 3. Auxiliary departments of Scientific Study not directly 
 connected with Jurisprudence. Classics; Mathematics; 
 General History. 
 
 Those departments of learning which are called general 
 studies, are requisite as the necessary condition of the 
 successful prosecution of every particular branch of 
 knowledge. They are so far cultivated in the Higher 
 Schools, and thus far belong to mere School education. 
 The study of such sciences being necessary and essential 
 to every kind of learned culture, ought, however, to be 
 also carried on at the University, where they are taught 
 in greater range and in a more scientific form. Among 
 these universal disciplinary studies, the most important 
 and essential are the Classical Literatures, Mathematics, 
 and History. 
 
 1. Classics. — The ancient world, from whose scientific 
 treasures and literary works the modern culture has 
 arisen, is connected so closely by its Literature, and even 
 
 1 [' To the qualities of the head I cannot but add those of the heart ; 
 affectionate loyalty to the King, a zeal for liberty and the Constitution, a 
 sense of real honour, and well-grounded principles of Religion, as neces- 
 sary to form a truly valuable English lawyer, — a Hyde, a Hale, or a 
 Talbot. '—Blaokstone. ] 
 
PEELIMINAKY AND AUXILIARY STUDIES. 169 
 
 by its civil Institutions, with the modern world, that no 
 scientific education or culture can be complete without 
 some knowledge of the Ancient Literature. And while 
 the formative power, which is exercised by the classical 
 Antiquity on every mind that obtains a knowledge of it, 
 is a most important consideration, and the philological 
 and critical study required by it appears as a means to 
 that end, the independent value of this grammatical and 
 linguistic study for its own sake, and the philological 
 criticism accompanying it, is not to be regarded as insig- 
 nificant. Classical Philology is the best preparation for 
 the right philological treatment of the sources of Law, 
 and in this respect it is indispensable. But apart 
 altogether from this direct relation, which will be more 
 specially considered, such philological study accustoms the 
 mind to exactness in scientific investigations, and satisfies 
 the spirit of inquiry without being subordinated to the 
 gratification of mere curiosity. 
 
 2. Mathematics. — In these latter respects Mathe- 
 matics has a great resemblance to philological studies, 
 and it is particularly from this point of view that the 
 study of Mathematics unquestionably deserves to be 
 recommended to the student of Law, who has specially 
 to take care that the interest of his scientific pursuits 
 be not prejudicial to depth and exactness of knowledge.^ 
 
 3. History. — History is a subject which is full of 
 attraction for every one, and capable of an easily in- 
 telligible communication ; it has at the same time an 
 infinite depth of its own, and thus furnishes always new 
 material for inquiry and reflection. Viewed as a pre- 
 
 1 [Tlie importance of Mathematics in relation to the Physical Sciences 
 and of their study by the Jurist might be usefully dwelt upon. Leibnitz 
 compares the Roman Law to the works of the Geometricians. — Tr.] 
 
170 THE SCIENTIFIC STUDY OF JUEISPEUDEMCE. 
 
 paratory science, its main advantage consists in showing 
 the connection of the present with vanished times, in 
 putting the life of the individual into communication 
 with a great past, and in furthering freedom and candour 
 of judgment by the great variety of changing conditions 
 and views which it unfolds and presents. The repre- 
 sentation of the remarkable men of History also becomes 
 an effective and instructive form of teaching the lessons 
 of life, as History shows the wealth of the powers that 
 slumbered in them, and as the manifold tendencies to 
 good or evil are thus exhibited in living example. Along 
 with the Universal History of the human race, the 
 Student will also derive much aid from a special interest 
 in the History o^ -Science and of Literature.^ 
 
 4. The Study of Philosophy as directly auxiliary to 
 Jurisprudence. 
 
 Philosophy may be generally described as the science 
 which expounds the ultimate and highest principles of 
 all human knowledge, and in particular it aims at giving 
 man an account of his existence and his destiny, with the 
 
 ' [As regards the study of these Preliminary Subjects at present required 
 in England, a reference may be made, for the sake of the Junior Student, 
 to Bedford's Digest of the Preliminary Examination Questions in Latin 
 Grammar, History, and Geography, with the Answers, 2nd Ed. 1882. — 
 But the Student who is in earnest mth the scientific study of Law, 
 must carry his reading in these subjects far above and beyond this pre- 
 liminary standard. Those who are aiming at the higher work of the 
 Legal Profession should remember from the outset, and all through their 
 studies, that, as Slater {op. cit. p. 8) has put it, ' there is no subject which 
 the Barrister may not be called upon to advert to during the course of his 
 speech, and at a moment's notice. A general knowledge of the Classics, 
 History, Mathematics, Mechanics, Chemistry, Medicine, Philosophy, and 
 in some cases Theology even, are the ordinary stock-in-trade of all Counsel 
 in a fair way of practice. ' — Tr.] 
 
PRELIMINARY AND AUXILIARY STUDIES. 171 
 
 rational grounds of his convictions and of his actions. 
 This description at the same time implies that Philosophy 
 must be of the highest importance for the personal con- 
 viction of the individual, as well as for all insight into 
 the essential nature of science and every one of its parts. 
 It may be also mentioned that the gift of certainly 
 distinguishing the universal from the particular, and the 
 essential from the accidental, as well as the power of 
 applying universal principles to the particular branches 
 of knowledge, are important consequences of the formal 
 culture that is acquired by philosophical studies. Of the 
 various sciences into which Philosophy is divided, and of 
 the anthropological sciences that are related to Philosophy, 
 some of them stand in a close and precise connection 
 with the departments of Jurisprudence, and they will be 
 referred to more particularly. The general study of 
 Philosophy, as well as of the other preparatory sciences, 
 may well precede the special study of Jurisprudence, and 
 sometimes this is the order adopted in the Universities. 
 It will, however, be more suitable not to separate them 
 entirely, but to let the two lines of study advance 
 together. By this external combination their inner 
 connection is best realized, and the influence of the 
 universal sciences will be more certain to further the 
 prosecution of the special professional study.^ — [Philosophy 
 should at least be studied in its three important depart- 
 ments of Logic, Ethics, and Psychology] : 
 
 1. Logic. — [The importance of Logic as auxiliary to 
 
 * [The student of Philosophy may begin by acquiring a general know- 
 ledge of its history in order that he may clearly understand the meaning 
 of its problems, their relations to each other, and the manner in which 
 they have been dealt with by the greatest thinkers. Certainly no study 
 of PhQosophy can be satisfactory that does not embrace the historical 
 
172 THE SCIENTIFIC STUDY OE JURISPRUDENCE. 
 
 Jurisprudence hardly requires to be dwelt upon. An earnest 
 and profound study of Logic is absolutely necessary as a 
 preparation for the interpretation of the sources of Law, for 
 a correct treatment of jural Principles, for the just apprecia- 
 tion of Evidence, and for the discussion of Cases.^] 
 
 2. Ethics. — Ethics or Moral Philosophy comes directly 
 into consideration in connection with the universal theory 
 of Eight and the determination of the essential nature 
 of Law. Jurisprudence and Ethics are thus not only 
 closely related as kindred sciences and come into im- 
 mediate contact at many points, but the doctrines of 
 Eight can neither be established nor explained without 
 the investigation or assumption of ethical ideas. Hence 
 a knowledge of ethical theories, especially in so far as 
 they relate to the moral nature of man generally, must be 
 of great advantage to the study of Jurisprudence, even if 
 it be held that the principles of Eight are not thus directly 
 obtained or explained.^ 
 
 development. The best introduction to the History of Philosophy is 
 Schvvegler's Handbook of the History of Philosophy, translated and 
 annotated by Dr. J. Hutchison Stirling, 8th Ed. 1876. TJeberweg's 
 History of Philosophy, translated by G. S. Morris, etc. (Loudon 1874), 
 gives very full and useful guidance to the literature of Philosophy. — Te.] 
 
 ' [Of the Elementary Works on Logic, Jevons' Lessons on Logic, or 
 Fowler's Deductive and Inductive Logic, may bo chosen to begin with. 
 Whately's Logic contains some useful reading, but it is now almost 
 superseded by more systematic summaries. Bain's Deductive Logic 
 and Inductive Logic are excellent text-books. Sir W. Hamilton's Lectures 
 on Logic may be read along with Archbp. Thomson's Outline of the Laws 
 of Thought. John Stuart Mill's Logic (System of Logic, Ratiocinative 
 and Inductive, being a connected view of the principles of Evidence and 
 the methods of Scientific Investigation, 2 vols. 8th Ed. 1873) deserves 
 special study. Historical sketches of Logic will be found in Mansel's 
 Edition of Aldrich's Logic (1849) and in Ueberweg's Logic (translated by 
 Lindsay).— Te.] 
 
 '' [The student of Law should be well grounded in Ethics, especially in 
 
PRELIMINARY AND AUXILIARY STUDIES. 173 
 
 3. Empirical Psychology, as the science of the facul- 
 ties and phenomena of the human mind, has even a 
 greater direct applicability in the departments of juristic 
 study. In several points of Criminal Law, as those 
 relating to the degrees of guilt or the conditions which 
 limit or suppress the freedom of the will so as to modify 
 the culpability of action, and in other similar relations, 
 the jurist has merely to apply certain psychological truths 
 to the estimation of criminality. Along with this most 
 important application of Empirical Psychology to Juris- 
 prudence, it is not to be denied that the study of 
 psychology combined with the self-acquired knowledge of 
 human nature, will also make the jurist more capable of 
 dealing with the practical affairs of his profession.-' 
 
 view of the now general tendency to establish all Jurispnidence on an ethical 
 basis. This tendency prevails both in England and in Germany. Among 
 the numerous works on Ethics from the intuitive and rational standpoint, 
 the following may be mentioned : — Dugald Stewart's Outlines of Moral 
 Philosophy, 1795 (Ed. by M'Cosh); Dr. Thomas Raid's Essays on the 
 Active Powers, 1788 (Ed. by Sir W. Hamilton in Reid's "Works) ; Bishop 
 Butler's 'Sermons' and 'Analogy,' etc.; Fleming's Manual of Moral 
 Philosophy, with quotations and references for the use of Students, 1867 ; 
 Professor Calderwood's Handbook of Moral Philosophy, 1872, etc. ; Kant's 
 ' Metaphysic of Ethics ' (Ed. by Prof. Calderwood), and his Philosophy of 
 Law (1887) ; Green's Prolegomena to Ethics (Kanto-Hegelian). — Among 
 the works on Ethics from the empirical and utilitarian standpoint may be 
 mentioned: — Bentham's Principles of Morals and Legislation, 1790; Deon- 
 tology, or Science of Morality (Ed. by Sir J. Bowring, 1834) ; J. S. Mill's 
 Utilitarianism, 1863 ; Herbert Spencer's Data of Ethics ; Wilson and 
 Fowler's The Principles of Morals, 1886 ; Professor H. Sidgwick's The 
 Methods of Ethics, 3rd Ed.— Of the Histories of Ethics reference may be 
 made to Sir James Mackintosh's Dissertation, 1830 (Ed. by "Whewell, 
 1872) ; Sidgwick's Outlines of the History of Ethics (1886) ; Bain's 
 Moral Science ; Martineau's Types of Ethical Theory, 2nd Ed. 1886 ; and 
 above all, to Paul Janet's Histoire de la Science Politique dans ses 
 rapports avco la Morale, 2 vols. 3rd Ed. 1887.— Tr.] 
 2 [On Psychology, besides Locke's Essay (1690) and the works of the 
 
174 THE SCIENTIFIC STUDY OF JURISPRUDENCE. 
 
 chief representatives of the Scottish School, Keid, Stewart, and Sir 
 "William Hamilton (Lectures on Psychology, 2 vols., and his Ed. of Reid's 
 Works), reference may he made to Brown's Lectures on the Philosophy 
 of the Human Mind (1820), Bain's Mental Science, Mill's Examination of 
 Sir "W. Hamilton's Philosophy (1865) ; James Mill's Analysis of the 
 Phenomena of the Human Mind {New Ed. 1869) ; J. Sully's Outlines of 
 Psychology, 2nd Ed. 1885 ; and The Article in the new Ed. of the Encycl. 
 Britannica. — Te. ] 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 
 
 A.— THE SCIENCE OF GENERAL JURISPRUDENCE. 
 (The Philosophy of Law.)^ 
 
 1. The Existence of Universal Jural Truths. 
 
 Although the old idea of Natural Law must be given 
 up as impracticable, and although it may be held that 
 a genuine Philosophy or Science of Law has not yet 
 occupied its place, it is still possible to establish the 
 existence of a system of Natural Law in the wider sense 
 of Universal Jural Truths. It is a fact which cannot be 
 denied, that all positive Legislations and customary Laws 
 
 ' [The Philosophy of Law is here dealt with in its practical and con- 
 crete relation to Positive Law. Falck's standpoint is essentially the same 
 as that of the English School and of Puchta and Friedlauder. Friedlander, 
 while representing the highest speculative insight, also holds that, ' The 
 Philosophy of Law as a special science is superfluous. Philosophy cannot 
 exist hy itself as a science of the Absolute, and just as little can the 
 Philosophy of Law exist as a separate science in contrast to the science of 
 Positive Law. The Philosophy of Law after many deviations has again 
 come upon the right path ; it has its sphere of activity in the midst of 
 what is positive ; it has entered into the fresh moving life of the time. 
 It has to reconcile what exists with the demands of Reason, " to recognise 
 the rose in the cross of the age." It has accordingly even changed its 
 name, and in virtue of its giving regard to Experience it has been 
 designated " Philosophy of Law and Politics," or "Philosophy of Law 
 
176 THE SCIENTIFIC STUDY OF JURISPRUDENCE. 
 
 are imperfect, nor do they in any way present principles 
 of Eight that are available for all the cases that arise. 
 It is, however, a necessary consequence of the jural order 
 universally recognised in the State, that a right and just 
 decision must be possible for every case in dispute. But 
 if every decision is to bear the character of rightness and 
 justice in itself, it is impossible to fill up all the lacunae 
 of positive Law by mere principles of Equity, or even by 
 new Laws enacted for past cases. Every system of Law, 
 just because it is incomplete, thus involves the silent 
 assumption that there exist universally knowable and 
 universally valid Principles of Law that may be applied 
 to all undetermined cases ; and these are regarded as 
 needing no publication, and thus the published Laws pass 
 them over in silence. Sometimes this view is expressly 
 enunciated, and the judge is directed to complete the 
 Law from his own reflection. 
 
 2. The Origin of Universal Jural Truths. 
 
 The problem which has to be solved in the ascertain- 
 ment of general Eules of Law that will be applicable to 
 
 and Comparative Jurisprudence." This " and," however, is superfluous ; 
 the designation is tautological, and the Philosophy of Law is not to be 
 regarded as a special science. As soon as it is seen that the Philosophy 
 of Law has no other function than the spiritual permeation of Positive 
 Law, the contrast between the Philosophy of Law and the Science of 
 Positive Law disappears ; for their contents are really the same ' [Encyclo- 
 padie, 142-3). The Literature of the Philosophy of Law will he found 
 indicated in the Footnotes to the Translator's Preface to Kant's Philosophy 
 of Law (1887). From this standpoint Jurisprudence is generally repre- 
 sented in the present work as the Science of Law, rather than the Science 
 of Eight, but the correlative principles of Right are always presupposed, 
 even when they are not overtly expressed in the more concrete current 
 terminology of Positive Law. — Tii. ] 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. l77 
 
 undetermined cases, can be no other than to establish the 
 universal recognition of a Eule as a juristic truth. For 
 this two things are req^uisite :— (1) In the first place, it 
 must be shown that a certain Eelationship is constituted 
 with those who stand under the guarantee given by the 
 State, or that there is a legal protection given to them in that 
 relation. (2) And, in the second place, it has to be deter- 
 mined what importance belongs to the facts that are to be 
 judged in connection with the universal law of Eight, or 
 what declarations of will are contained in these facts. It 
 thus comes to be of prime importance that all the legal 
 conseq[uences involved in the fact that a Civil Society with 
 a jural order exists, shall be completely developed, and 
 that the several relationships of Eight shall be exactly 
 ascertained, in their actual constituents, according to 
 their proper nature. The essential characteristic of all 
 jural principles lies in their necessity ; and hence the 
 mere applicability of certain rules to the human rela- 
 tionships is not enough to invest these Eules with 
 practical validity. The necessity of a Eule is known in 
 a twofold way, either by historical examination of the 
 legislative will, or by inferences from recognised facts. 
 The latter mode of Necessity may also be called a logical 
 Necessity. The universal jural truths rest upon such a 
 logical Necessity, that is, upon their absolute connection 
 with other recognised principles and doctrines. The 
 universal theory of Eight can therefore only be estab- 
 lished by an analytical development of given conceptions, 
 and by determining their logical connection. As the jural 
 principles which constitute the substance of the universal 
 Science of Law are derived by a strictly logical argumen- 
 tation from those facts which are presented in every Civil 
 Society, it is evident why Universality may be assigned 
 
 M 
 
178 THE SCIENTIFIC ST0DY OF JURISPEUDENCE. 
 
 to the jural truths thus found. The name ' Natural Law ' 
 is suitable enough in application to them, because these 
 principles do not rest upon particular arbitrary deter- 
 minations. Finally, by a reference to its distinction, both 
 from historical inquiries and from philosophical doctrines, 
 this theory of legal Eight may be called a rational theory. 
 
 3. The Extent and Nature of Universal Jural Truths. 
 
 As universal jural truths are only found by a logical 
 analysis of given conceptions, it follows further that a 
 system of legal Eight can only consist of universally valid 
 principles in so far as the jural relationships are deter- 
 mined by given facts, and not by ideas drawn from 
 considerations of final purpose or moral dignity. The 
 general Science of Law cannot therefore embrace all the 
 jural relationships, but only those that are not necessarily 
 regulated by reference to considerations of purpose, or 
 feelings, or ethical principles, and in connection with 
 which the main point is to know what actually exists. 
 It is chiefly in the sphere of real Eights and Obligations 
 that the universal jural principles are directly regulative, 
 whereas in connection with the Eights of Persons they 
 are to a large extent limited or excluded. — It is some- 
 times far from easy to determine precisely the limits of 
 the rational and of the historical in the sphere of Law ; 
 but that there is such a distinction cannot be ignored. 
 One evidence of it is found in the fact that in the modern 
 systems of Legislation, in which the principles of their 
 enactments have been made known, no motives are 
 assigned or appear for a great part of their jural prin- 
 ciples. It is just the characteristic of universal jural 
 truths that no special ends are conceivable in connection 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 179 
 
 with them. The principles of Law are not therefore to 
 be established by a reference to their Utility, but they 
 are received and recognised merely and solely because 
 they express what is real truth. 
 
 4. Methodology and Utility of General Jurisprudence. 
 
 The jural truths that are derived from the nature of 
 Civil Society and the various facts contained in it, may 
 be treated either in connection with the doctrines of 
 positive Law, or they may be taken apart and expounded 
 by themselves. It is practically a matter of indifference 
 which method is chosen. Tor even the doctrines of 
 positive Law cannot be expounded in a merely historical 
 way, but they have also to be developed analytically in 
 order that they may be completely understood. The 
 method of treating positive Law is therefore in part the 
 same as that which must be applied in the rational 
 Science of Eight, and the difference between them con- 
 sists merely in the mode in which the objects of the 
 analysis are given as facts. — But in relation to the study 
 of Jurisprudence it is of great importance to distinguish 
 the universal principles of Pdght precisely and definitely 
 from the positive propositions of Law, and this is a strong 
 ground for a separate treatment of them. The applica- 
 tion of positive Law also depends on a clear knowledge 
 of the distinction in question, in so far as the wider or 
 narrower application of a rule of Law is conditioned by 
 its positive or rational nature, and it is thus a matter of 
 much importance as to whether a legal principle is ration- 
 ally intelligible of itself or not. The distinction referred 
 to is likewise of great importance in regard to the histori- 
 cal treatment of Eight and Law. The universal theory 
 
180 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 of Eight has, by its very nature, no history, for the 
 historical process can apply in this relation merely to 
 the progress of the scientific knowledge of the theory. — 
 Finally, it requires no demonstration to show that it must 
 be of great importance for the practical Jurist to possess, 
 in the universal theory of Eight, a means by which he is 
 put into the position of being able to decide justly upon 
 any matter, even where positive Law fails to guide him. 
 
 B.— THE SCIENCE OF POSITIVE LAW. 
 5. Law defined in its relation to the State. 
 
 By positive Law we understand a system of principles, 
 enactments, and rules, to which the men living in a State 
 or Civil Society are so subjected that, in case of necessity, 
 they can be compelled by coercive means to observe them. 
 Positive Law thus presupposes the existence of social 
 unions which recognise prescriptions of the kind referred 
 to, and which guarantee their observance. That such 
 unions really exist, is a universally known fact that needs 
 no demonstration. They have all essentially one and the 
 same end, and the different designations applied to them 
 only indicate certain modifications of form. The most 
 general name given to such a union is ' Civil Society,' 
 and it implies, by its very designation, that the union 
 indicated guarantees its several members protection 
 against one another. In so far as this Society is 
 enclosed in certain geographical boundaries, is thought 
 as independent of other similar unions, and is governed 
 according to a determinate order, we call it a ' State.' 
 The term ' People ' is also frequently used as synonymous 
 with these two names, but it further expresses the fact 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 181 
 
 that the men who live within the unity of such a Civil 
 Society or State are united with each other, not merely 
 by a community of law, but also by a relationship of 
 origin. — When we inquire into the reasons by which 
 men have been moved to enter into such unions, it 
 becomes at once apparent that it is not only from the 
 impulses of sociality and self-preservation implanted in 
 his sensible nature, but also from the consciousness of his 
 moral characteristics, that man feels the need to secure 
 his existence upon the earth against arbitrary disturb- 
 ances, and to bring it about that men living together 
 shall observe a mode of conduct towards each other which 
 may be consistent with the existence of peace and har- 
 mony according to a universal law. Experience, however, 
 shows that men do not always do, or forbear to do, of them- 
 selves what may be required by their mutual relationships; 
 and hence it becomes desirable to adopt measures which 
 will guard against disturbances of peace, and restrain from 
 arbitrary action those who will not do what is right of 
 themselves. The possibility of instituting a coercion 
 adequate for this purpose, depends on the union of a 
 number of individuals combined for the mutual guarantee 
 of public peace. In accordance with these relations, a 
 system of positive Law may be more precisely defined as 
 consisting of those rules or obligations the observance of 
 which is necessary for the maintenance of peace among 
 men living together, and which are secured by the com- 
 mon will of those who are united in the State. 
 
 6. Nature and extent of legal Regulations. 
 
 From the relation of Law to the State, it follows that 
 there are three classes of common regulations or prescrip- 
 
182 THE SCIENTIFIC STUDY OF J0EISPEUDENCE. 
 
 tions winch are to be regarded as original constituents of 
 all forms of legal Eight. These are, 1st, those that deter- 
 mine the relationship of individuals to one another in 
 reference to a free and secure existence ; 2nd, those that 
 are destined to maintain society as a whole in its union 
 as a State ; and 3rd, those that arise from the religious 
 and moral elements of society. In addition to these 
 factors as constituting the jural rules (normce) of a people, 
 several other things are required. (1) And first of all, 
 certain Institutions are necessary to secure the observance 
 of these rules under positive guarantees. Thus Judges and 
 Magistrates must be appointed, and their duties towards 
 the members of Society, and of these members towards 
 them, must be determined. (2) Again, the Eules pre- 
 scribed by the State are not necessarily limited to the 
 sphere .which is defined by the Institutions referred to, 
 but they may be extended to all Actions which are in 
 any way connected with the well-being and security of 
 the whole of Society. The regulations of the State may 
 be thus extended in their range of application in order 
 that the social life may thereby become as secure, noble, 
 and agreeable as is possible, in accordance with the 
 natural limits of the operations of the political power, as 
 well as the intelligence and character of the people. As 
 regards the extent of the domain of positive Law, there 
 is therefore no limit in ahstracto, and experience shows in 
 fact that at different times there is a difference in the ex- 
 tent to which actions are withdrawn from the arbitrary 
 freedom of the individuals and regulated by the enact- 
 ments of the State. In the progress of Civil Society, the 
 interests of its members become enlarged, and in the 
 degree in which external and internal peace is settled, the 
 powers of society may become more available for other 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 183 
 
 ends in common, and even for the furtherance of all that 
 is useful, true, beautiful, and holy among men. The State 
 ,has always been recognised by the better minds as the 
 efficacious institution through which alone men can really 
 become men. 
 
 7. Of Laws and the various meanings of the word Law. 
 
 The authoritative rules (normce) that are recognised 
 and guaranteed by a civil society, may be distinguished 
 into two principal classes. 1. The first class consists of 
 those that are recognised as right and valid, without 
 reference to any sanction by the State, being constituted 
 by the very existence of the State as a necessary con- 
 sequence of that fact. 2. The other class, again, consists 
 of those rules that are overtly established by the govern- 
 ment of the State, and are accepted by the express deter- 
 mination of its members as a social body. Of these two 
 constituent parts of the precepts or rules which have 
 to be observed in the State, the first may be specially 
 called Bight (SUaiov, Jus), and the second may be called 
 Laws (vo/Moi, leges). The word ' Law,' in the special 
 sense which comes nearest its etymology, thus designates 
 those prescribed rules which have their foundation in 
 some voluntary determination. There would, however, 
 be little danger of misunderstanding were the word Law 
 to, be taken in a more general sense, so as to comprehend 
 under it every Eule which can be carried out in the 
 State with legal coercion when recLuired. If the term 
 Law is taken in this general sense. Jurisprudence may 
 be defined as synonymous with the Science of Law 
 (scientia legum). By Law is also understood any oral 
 or written expression or declaration of will that contains 
 
184 THE SCIENTIFIC STUDY OF JUKISPEUDENCE. 
 
 a jural rule or regulation. By any further extension of 
 the meaning of the word Law, it ceases to express a 
 juristic conception. And generally, the usage which 
 applies the term Lavj to every rule that is recognised 
 as necessary, and even to every formula which describes 
 the characteristic of a particular phenomenon, must be 
 regarded as a mere metaphor.^ 
 
 It will further serve to elucidate the foregoing concep- 
 tion of positive Law, if we attend to the other meanings 
 of the term and its various opposites. 1. Law, as above 
 defined in the objective or universal sense of the term, 
 designates the body of rules (nortnce) that stand under 
 the protection of the State, and they are at once distin- 
 guished in principle from other rules of conduct that 
 stand either merely under ethical laws, or that may be 
 observed from considerations of prudence, as well as 
 from usages which are not obligatory. — 2. The expres- 
 sion Law, in the sense of Right, is also applied to 
 designate the whole of those conditions and relations 
 of life that are included under jural rules. This appli- 
 cation of the term is closely related to the meaning 
 given above, and the theory of Right has also come to 
 signify the scientific representation of those rules and 
 relations. The scientific whole indicated by it is also 
 thereby distinguished from other sciences generally, and 
 
 ^ [Compare the interesting discussion ty Sir Henry S. Maine of tlie 
 similar restriction in the application of the term Law by Bentham and 
 Austin. ' Law, when used in such expressions as the Law of Gravity, the 
 Law of Mental Association, or the Law of Rent, is treated by the 
 Analytical Jurists as a word wrested from its true meaning by an 
 inaccurate iigurative extension, and the sort of disrespect with which 
 they speak of it is extremely remarkable ' (Early History of Institutions, 
 p. 372, etc.). On the etymology and applications of the terms jus and 
 lex, see Muirhead's Soman Law, p. 18. — Tr.] 
 
THE SPECUL SUBJECTS OF JURISTIC STUDY. 185 
 
 particularly from morals and politics, and is even con- 
 trasted with them. — 3. The principles recognised by the 
 State constitute the basis of a necessity to perform, or 
 to forbear the performance of, the actions embraced 
 under them. Viewed as a consequence of the laws, 
 this forms an Obligation, and the title or claim which 
 forms the correlate of the obligation to demand the 
 performance or non - performance of certain actions, 
 constitutes a Bight in the subjective or individual 
 meaning of the term. The two expressions. Obligation 
 and Bight, are, however, most commonly applied to 
 relationships in which persons stand connected with one 
 another. — 4. Finally, the word Law is also used to 
 designate, not the whole of the rules recognised by the 
 State and protected by coercion, but only that part of 
 them which are brought into application in the courts 
 of the country. In this sense Law, as Justice, is con- 
 trasted with the political administration of the State. 
 This notion of legal Eight is a historical one ; it rests 
 in part upon a distinction in the constitution of every 
 country, and in part upon the fact that the instruction 
 communicated in Jurisprudence has been wont to give 
 special regard to the office of the judge and the relative 
 judicial functions. 
 
 8. Positive and Natural Law, and Written and Unwritten 
 
 Law. 
 
 Doctrines and rules which can only be known by 
 external evidence are called positive, and the same term 
 is applied to the sciences that deal with such doctrines 
 and rules. That Jurisprudence is, to some extent, a 
 positive science, is apparent from the fact that knowledge 
 
186 THE SCIENTIFIC STUDY OF JURISPRUDENCE. 
 
 of Customs and Laws can be obtained in no other 
 manner than by testimony. In so far, however, as jural 
 propositions do not rest upon the testimony of witnesses, 
 but have to be discovered from an examination of Civil 
 Society; and the various circumstances and relations of 
 life that appear in it, or have to be derived by inference 
 from these facts, the sjim-total of such rules may be 
 called natural Law in contrast to positive Law. Positive 
 Law, again, is of a twofold kind, according as the rules 
 constituted by it require to be made publicly known, 
 or are valid as law without such publication. The 
 former condition is applicable to the regulations that 
 are established by the legislative Power, which, as new 
 voluntary rules, necessarily require to be publicly 
 announced in order to obtain the universal recognition 
 that is implied in the essential nature of a Law. This 
 published Law is usually also called Written Law, 
 although the term is not always strictly applicable to 
 our modes of publication. The other class of positive 
 jural rules constitute the Univritten Lavj, and it is made 
 up of the Customary Law that takes form among the 
 people. Custom is nothing but a mode of action which 
 has become so universally observed that it comes to be 
 regarded as necessary. And hence it is evident that 
 Customary Law includes the universal recognition of the 
 rules thus observed ; and this recognition is manifested 
 even in a higher degree than can be realized in the case 
 of the rules of the legislative Power. Further, Customary 
 Law belongs in one relation to the Unwritten Law, 
 which comprehends the principles that are derivable 
 from the essential nature of Civil Society, and the human 
 relationships that are placed under the protection of the 
 State ; and hence in another relation it has this much 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 187 
 
 in common with the Published Laws, that it must be 
 attested, and it is on this account positive as regards 
 its origin. These three constituent elements are all 
 found in the system of every people, although in very 
 diverse relations as regards the quantity in which the 
 rules of each class are found. 
 
 9. Of the principle and value of Customary Law. 
 
 In the early ages the jural System was for the most 
 part unwritten, but in the course of time it has been 
 always more and more determined by published laws. 
 It is only in quite recent times, however, that the 
 recognition of customary Eights and Law has been 
 regarded as an imperfection ; and this view is connected 
 with the idea that all Eight and Law in the State must 
 take its origin from the legislative power of the State. 
 It has even been maintained that the binding authority 
 of Customary Eight must be founded indirectly on the 
 will of the legislative power, and that Customary Law 
 must receive its legal character from the silent assent 
 of the Legislator.^ If by this is merely meant that 
 there are Laws in all countries which assume and 
 recognise certain known usages of the country as 
 regulative of Eight, this would not explain how the 
 customary rule was iirst introduced, nor would the 
 original principle of Eight involved in the custom be 
 thus accounted for. This principle of jural Custom 
 cannot be rightly regarded as contained in any consent 
 or sanction of the Lawgiver. Por, were Custom not 
 
 ^ [This is the view of Austin and his school. Compare Maine's solid 
 and satisfactory review of their maxim, that ' What the sovereign permits, 
 he commands' (Early History, Sect. xiii.). — Tk.] 
 
188 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 already law without this ratification, the then jural 
 principle constituting the legal force of the custom 
 would properly have to be contained in the will of the 
 legislative power. But the declaration of the will of a 
 Legislator only becomes a law by its formal publication, 
 whereas it must be admitted that the custom as such 
 becomes a law through the common will that is directly 
 expressed in the mode of action by which it is con- 
 stituted. On the other hand, it cannot be denied that 
 when a Custom has once taken form, it continues to 
 exist by the will of the legislative Power, for this Power 
 could abolish or alter the custom as it can in the case 
 of any other law. In fact, however, legislative limita- 
 tion of customary law will only be necessary in rare 
 cases ; for in general the custom is natural in itself, and 
 experience also confirms the view that those legal rules 
 which have arisen of themselves will be conformable 
 to the existing relations and wants of the people. In 
 every case. Customary Law has the decided advantage 
 in that it rests upon the free will of the people ; and 
 Blackstone considers it a laudable characteristic of 
 English Law, that it consists for the most part of 
 customs. It has been already observed that all Un- 
 written Law is not necessarily Customary Law. Never- 
 theless, it is not easy^ to determine the boundaries 
 between Custom and the jural Eules that are derived 
 from conceptions, because there may be contained in 
 these conceptions certain modifications that have been 
 produced by an unnoticed custom. Of late the designa- 
 tion ' popular ' Law has been used by several jurists 
 instead of the expression ' customary ' Law. 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 189 
 
 10. Adjudication; Equity; Doctrine. 
 
 The usage of the courts, which may be termed 
 Adjudication or Precedent (usus fori, stilus curiae), is 
 related by its nature to customary Law. It includes 
 the whole of the rules of law that are established by 
 the uniform practice of the public authorities in jural 
 matters. Certain principles thus arise, and they come 
 to have the force of law. It cannot be definitely deter- 
 mined when they acquire this legal power, but the 
 condition implied amounts to this, that the number of 
 the precedents in question must be sufficient to determine 
 a public opinion regarding a point of law. It is manifest 
 that it would be improper to assign to single judgments 
 of a court such an effect. Yet the authority of a 
 particular tribunal may sometimes be great enough to 
 put disputed principles of Law out of doubt by a single 
 decision. 
 
 Further, Equity (sequitas) is also to be reckoned 
 among the sources of Law. The conception of Equity, 
 however, is very unsettled and uncertain. In relation 
 to rules of Law, Equity can only be understood to signify 
 a system of convenient rules that are capable of being 
 applied to any particular case, but which cannot be 
 proved to be necessary either on historical or rational 
 grounds. The application of Equity in jural relation- 
 ships, therefore, always rests upon an imperfection of 
 knowledge that is to be found even among the best, and 
 it serves only as a practical expedient where the proper 
 right of the case cannot be otherwise ascertained. 
 
 The Doctrine of the Jurists regarding what is right 
 or legal, whether it be delivered orally or in writing, 
 ought, by its very nature, to be merely an auxiliary or 
 
190 THE SCIENTIFIC STUDY OF JUEISPRUDENCE. 
 
 means of helping to ascertain what the existing law is ; 
 yet it has frequently become a real source of Law. The 
 juristic Literature of certain times has exercised so great 
 an influence, as history shows, that certain juristic writ- 
 ings have acquired the formal validity of law. This, 
 however, is to be regarded as an abuse which really has 
 no other foundation than spiritual indolence, or the 
 inclination to believe in authority. 
 
 11. Diversity in the Legal Systems of different peoples 
 and ages. 
 
 As Law arises through the medium of the collective 
 will of a Civil Society, there must be as many systems 
 of Law as there are civil Societies or States. This 
 plurality and diversity of Laws may be viewed, in the 
 first place, as a difference in form determined by the 
 fact that the legal power by which they are constituted 
 does not arise from a common origin. As regards the 
 jural principles themselves, or their substantive contents, 
 the various Laws presented in different systems may 
 more or less agree or disagree with each other. The 
 legal systems of all nations have indeed a common basis 
 in universal human nature. But as human nature can 
 nowhere appear in its essential universality as such, but 
 always assumes in its manifestations the character of 
 individuality, the universal principle present in every 
 legal system is also specially determined by the cha- 
 racteristic peculiarities of the people among whom it 
 appears. Different circumstances and relations lead to 
 different laws ; and even under similar external circum- 
 stances there arises a diversity from dissimilar knowledge 
 and estimation of human relationships. Owing to the 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 191 
 
 same causes, the legal system of one and the same people 
 is not always the same, but it changes, even without 
 the direct influence of the legislative power, in the course 
 of the historical development of the people. In so far 
 as this change arises of itself, and in so far as the 
 legislation likewise undergoes change without being 
 arbitrarily modified, the development proceeds according 
 to organic laws, the knowledge of which is necessarily 
 of great use in relation to the history of Eight and Law. 
 Taken generally, there appears a continuous tendency 
 towards Universality, and, it must also be admitted, 
 towards a certain bareness and want of character in 
 detail. In view of this diversity in the legal Eights of 
 different peoples, and the changes which take place even 
 in the jural system of the same people, Jurisprudence 
 can be a practical science only in so far as all the 
 principles which it contains are connected into a whole 
 by their common relation to a particular State and its 
 existing Constitution. 
 
 12. Common Law and Particular Law. 
 
 Even at a particular point of time in any one State 
 the uniformity of the laws, as regards their substantive 
 contents, is by no means so universal and common that 
 the same relationships may be everywhere adjudicated 
 upon by the same rules. The legal principles which have 
 become universally valid throughout the whole domain of 
 the State, and which are to be applied wherever no 
 particular rule has been established, constitute what 
 is called Common Law (jus commune). Particular Law 
 is the term applied to what has validity only in certain 
 districts of the country in contrast to Common Law. 
 
192 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 Common Law and Particular Law are relative in their 
 nature and application according as a country may be 
 regarded as a separate State, or as also part of another 
 State. Common Law, however, always requires, by its 
 very nature, a real political union as the foundation 
 of the universal validity of its jural rules, and the 
 material agreement of the principles of Eight, or even 
 the use of common sources of Eight, is by no means 
 sufficient to establish it. — The distinction between Com- 
 mon and Particular Law, rests primarily upon the geo- 
 graphical limits of the State and the several divisions 
 of the country. For it is generally assumed as a principle 
 that the modifications of Law are determined externally 
 by territory, the related nationality of the individual 
 peoples not now carrying tlie same distinctive influence 
 as in older times, when the races and peoples lived mixed 
 up in great masses with one another, and were not yet 
 fused into separate nations. At present the conception 
 of territorial rights has largely, if not completely, sup- 
 pressed the idea of persotial rights in the relationship 
 of one State to another. Nevertheless, in reference to 
 the districts of the same country, we have to maintain 
 the principle, akin to the older view, that the legal right 
 of a person is not to be considered merely by regard to 
 his region or dweUing-place, but also by relation to his 
 jural status. Even among the Jews the foundation of 
 the particular Eight under which they live in many 
 places, is not primarily placed in their nationality, but 
 in the position or judicial Status assigned to them under 
 judges chosen out of their own people. 
 
 It might be thought that the particular legal rights 
 of the several parts of a country have been occasioned by 
 particular jural relationships and particular requirements. 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 193 
 
 This, however, is but rarely the case. These rights have 
 arisen much more frequently from the fact that such 
 districts, in earlier times, formed in some way inde- 
 pendent free communities. And hence the legal right 
 that arose during that period of their history was after- 
 wards retained, and it could not but influence and 
 modify any new legislation. Another occasion of par- 
 ticular rights lay in the prevailing view of the Middle Ages, 
 according to which the several districts or communes of 
 a country were allowed to determine autonomously the 
 Law which they were to recognise and practise. Further, 
 it is but natural that diversity should arise in a legal 
 system that has been mainly formed and constituted by 
 customs. Nor is it to be regarded as an imperfection 
 that certain rules diverging from the Common Law 
 should arise, as this is not only extremely natural, but 
 it must be regarded as a condition without which legal 
 Eight would not be conformable to the relations and 
 mind of the people. Besides, it is neither essential to 
 the nature of Eight, nor to the requirements of a civil 
 commonwealth, that a universal uniformity of Law should 
 be produced by the medium of a legislative Power. 
 Without any arbitrary interference, a uniform legal 
 system will arise of itself, as all experience shows, if 
 only the Eights of the political power in the State are 
 not disconnected in detail, and if the unity of the people 
 can maintain itself undisturbed. 
 
194 THE SCIENTIFIC STUDY OF JTJEISPEUDENCE. 
 
 C— SOUECES AND FORMS OF LAW. 
 
 13. The Sources of Law generally. 
 
 The legal character of a rule, or its authoritative jural 
 form, arises from its recognition in the Civil Union which 
 has been founded for its guarantee. The rules them- 
 selves which constitute the material of Law arise (1) 
 partly out of the circumstances and relations in which 
 the individuals who are to be secured against disturbances, 
 are placed by nature ; (2) partly out of the life of the 
 people as it develops itself with unconscious freedom ; 
 and (3) partly also from an intentioned activity that is 
 directed consciously to the formation of Law. The last 
 of these sources of Law cannot be regarded as original 
 or as necessary in itself, as it only appears when Society 
 comes to hold that an alteration of the existing order 
 is necessary. The right and title to undertake such 
 alterations are proper to the legislative Power, and they 
 constitute part of the rights of the Government. There 
 are accordingly three sources of Law : 1. The original 
 nature of the human Eelationships ; 2. The life of the 
 People; and 3. The legislative Power. In the case of 
 the latter two Sources of Law, we must distinguish then- 
 products or forms from the sources themselves, as 
 the phenomena in which the life of the People and 
 the legislative Power manifest their activity in the 
 formation of Law. The Customs which arise out of the 
 life of the people, and the Laws which spring from the 
 legislative power, may, with reference to the applica- 
 tion of the term Law to the scientific representation of 
 the rules that are recognised by the people, be likewise 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 195 
 
 called in another sense Sources of Law. By the expres- 
 sion ' Sources of Law ' is commonly meant the sources of 
 the knowledge of Jurisprudence, and it is so used in what 
 follows. 
 
 14. Law-Books and Codes. 
 
 In almost all periods of history we find comprehensive 
 collections of the authorized and valid Eules of Law 
 made known under public authority. Among some 
 peoples, however, they are found more frequently than 
 among others. These ' Law-books ' have sometimes had 
 no other object than to put together the most important 
 of the current principles of Law, and especially such as 
 were contained in scattered documentary sources. Such 
 collections or digests might indeed alter points in detail, 
 but their purpose was not in any way to produce Law 
 itself, and just as little did they exclude the use of other 
 sources of knowledge. Of this kind are almost all the 
 Law-books of the ancient world and of the Middle Ages, 
 with hardly an exception. It is only since the middle 
 of the last century that another conception of 'Law- 
 books ' has arisen, according to which their purpose is to 
 embrace the whole legal system, common to a nation 
 in a degree of completeness sufficient for its application 
 in practice. Such law-books, called ' Codes,' began to be 
 prepared in Prussia from 1714, in Austria from 1753, 
 and in Eussia from 1767. The first that was actually 
 brought into use was that of Prussia in 1791, which was 
 followed by that of Austria in 1810. The celebrated 
 French code, called the Code NapoUon, was much more 
 rapidly formed, having been begun without much careful 
 preparation in 1793, and established in 1804. — If such 
 works merely indicated the valid system of Law, the 
 
196 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 labour of preparing them might be undertaken by private 
 persons as well as by the government. Private works, 
 which embody the rules of Law without being scientific 
 in form and treatment, are mere summaries of the legal 
 system. In early times they were not uncommon, and 
 they have even received the character of actual Codes 
 from their universal use. Such juristic Text-books have 
 frequently found their first occasion in the existence of 
 particular courts for special kinds of Eights.^ 
 
 15. The various Modes and Forms of Law. ' 
 
 The different kinds of written sources of Law may be 
 viewed — 1. According to their external form and extent 
 of application ; 2. According to their origin as being 
 indigenous or received from without ; and 3. According 
 to the qualification of their legal Eules. 
 
 1. Form and Extent of Laws. — The Laws published 
 by the Government of a State, do not always contain 
 what is new, but often merely repeat and confirm what 
 already existed as right. They bear various names, such 
 as Statutes, Eegulations, Ordinances, Enactments, Pro- 
 
 ' [The subject of ' Codification ' was strongly advocated ty Bentham, 
 to whom the term is due. The discussion was taken up by Thibaut in 
 Germany in 1814 (Ueber die Nothwendigkeits eines allgemeinen burger- 
 lichen Rechts in Deutschland), who was keenly opposed by Savigny in his 
 celebrated treatise, ' TJeber den Beruf unserer Zeit fur Eeehtswissenschaft 
 und Gesetzgebung ' (1814, 1829). The Law of British India has been 
 concisely codified, and the tendency towards Codification in England 
 is still advocated. See the excellent Chapter on Codification by Pro- 
 fessor Sheldon Amos in his Scienci of Law. The Article on the sub- 
 ject in Holtzendorffs Encydopadie may be referred to for the latest 
 position on the Continent. On the formation and history of the Code 
 NapoUon, reference may be made to Mourlou's Code NapoUon, 7th Ed. 
 Paris 1866.— Tr.] 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 197 
 
 clamations, Edicts, Eescripts, Mandates, Instructions, etc. 
 Such terms indicate the external form of the document, 
 or the special nature of its contents, or the range in 
 which the published rule is to hold. With regard to the 
 substantive contents of the Laws, Jura singularia are to 
 be specially distinguished, which establish Laws that 
 deviate from what is general, but which, under the 
 particular circumstances, are applicable to all the subjects. 
 In so far as the application of such rules requires them 
 to be regarded as legal regulations, they are called Bene- 
 ficia legis. On the other hand, if only individual persons 
 or particular classes or corporations are excepted from the 
 Common Law, these special laws are called Privileges, 
 and it is essential to their nature that they must be 
 capable of repeated application. Privileges are thus 
 distinguished from those dispositions by which the 
 application of a law is suspended in an individual case, 
 and which is called a ' concession ' or ' dispensation.' 
 Further, Privileges may be so bestowed as to become 
 binding upon all others (privilegia exclusiva) ; and so far 
 they belong to the class of common laws. Finally, there 
 exists an important difference among Laws, in that some 
 of them are universally made known, while others, 
 although not embodying any mere exceptions from the 
 rule of law, are communicated only to those whom they 
 immediately affect. Such laws are not universally 
 applicable in themselves, but can only be used under 
 reference to their proper series and connection as attesting 
 the existence of a universally valid principle of Eight, and 
 they are thus to be treated entirely in the same way as 
 the decisions of the public Courts {res judicatce). As 
 Laws proper can only proceed from the supreme authority 
 in the State, it follows that the common announcements 
 
198 THE SCIENTIFIC STUDY OF JUBISPRUDENCE. 
 
 and other magisterial publications of them are legally 
 binding only so far as they attest a valid regulation, or 
 refer to such relationships as have their regulation by law 
 entrusted to the discretion of particular Authorities. 
 Certain communities and corporations (universitates, collegia, 
 corpora) have frequently the right to pass decrees that are 
 binding upon third parties. Such decrees are properly 
 called ' Statutes ; ' and as such they are not mere compacts 
 valid among the members of the corporation, nor do they 
 rest indirectly upon such compacts. 
 
 2. Indigenous and Foreign Elements of Law. — If we 
 look at the way in which the material of Law arises 
 among a people, we find that it is either a product of the 
 people themselves, formed by their customs and by acts 
 of the legislative power, or it consists of jural principles 
 and institutions borrowed from other peoples. This latter 
 process has gone on so universally that there is perhaps 
 no legal system which does not contain foreign elements. 
 The distinction between indigenous and alien or adopted 
 constituents of Law, indicates not merely the external 
 origin of certain legal principles, but also denotes that foreign 
 collections of law have been adopted as authoritative 
 Law-books without undergoing any alteration in their 
 form. Such adoption of foreign systems of Law has 
 taken place in most of the countries of Europe in the 
 case of the Eoman Law, the Canon Law, and the Lombard 
 Feudal system of Law. The adoption of foreign systems 
 of law, is to be ascribed most frequently to the great 
 influence of doctrine and the predominant authority 
 which certain juristic writings have had upon practice. 
 When a foreign system is adopted, it may either obtain 
 unconditional authority, or be used only in a subsidiary 
 way to complete the indigenous system of the country 
 
THE SPECIAL SUBJECTS OF JUEISTIC STUDY. 199 
 
 (nis subsidiarium). The use of a subsidiary system, how- 
 ever, can never be necessary, as this necessity would be 
 contrary to the existence of the actual order of Law 
 among the people. Further, the recognition of subsidiary 
 sources of Law leads to the inevitable consequence that 
 the study of the principles of the indigenous system is 
 neglected, and the natural development and unfolding of 
 Law is checked or arrested. Only the conviction that a 
 foreign system of law presents a satisfactory development 
 of such jural rules as are knowable in themselves, can 
 form a basis for the idea of subsidiary Right and justify 
 its adoption in practice.^ 
 
 3. Inhibitory, Prohibitory, and Permissive Laws. — In 
 so far as we understand by Laws the rules prescribed 
 by the political power of the State to its subjects, it is 
 evident that in this sense there can only be Inhibitory or 
 Prohibitory Laws, and no mere Permissive Laws. In 
 reference to permitted actions there is no need of a 
 special determination regarding them, for what is per- 
 mitted may be immediately inferred from what is actually 
 commanded or prohibited. Nevertheless the acceptation of 
 ' permissive ' Laws, and a consequent threefold division of 
 laws into inhibitory, prohibitory, and permissive, may be 
 justified by reference to the conception of Law as a 
 public declaration of the legislative Power. For the 
 declarations of the political authority may, of course, have 
 it as their object to abrogate a hitherto existing rule that 
 has been received as authoritative, or to declare it to be 
 no longer existing, and thus to make action in that 
 relation free. Every Permissive Law thus presupposes a 
 real or supposed command or prohibition except in the 
 
 ^ [These positions might be illustrated by reference to the peculiar legal 
 relations of India under the present English Government. — Te.] 
 
200 THE SCIENTIFIC STUDY OF JUEISPKUDENCE. 
 
 case of such laws as serve for giving greater explicitness 
 to a rule, and which, along with the commanded or pro- 
 hibited actions, at the same time particularize some of 
 the permitted actions to which it relates. A Law which 
 allows certain hitherto illegal actions, and prescribes a 
 definite form for the authorizing of them, constitutes a 
 Lex secundum, quid permissiva. Further, some inhibitory 
 and prohibitory laws are not unconditional, but are often 
 only intended to be applied where persons standing in 
 jural relationships with one another do not agree to some 
 other mode of action. Such Laws are appropriately 
 termed dispositive Laws, because they merely develop the 
 jural effects or consequences that are involved in the 
 nature of a certain relationship. It is a characteristic 
 of the older laws that they contain far fewer dispositive 
 rules than the more modern laws, and that they are 
 limited for the most part to prohibitive regulations. 
 
 16. Division of Jurisprudence according to its internal 
 organization.^ 
 
 Although the whole of Jurisprudence is to be regarded 
 as a unity, and treated as such, yet the separation of the 
 various parts of the science by reference to the similarity 
 or difference of the jural relationships and their treat- 
 ment in distinct departments, is not inconsistent with 
 this view. On the contrary, such a mode of representing 
 the whole system of Law, under certain co-ordinate and 
 subordinate sections, is an immediate consequence of the 
 
 * [This Division is introduced as Conspectus of tlie Subjects of Study, 
 and for comparison with the Divisions of Puchta and Friedlander ; but it 
 has been thought unnecessary to reproduce Falck's elucidation of it in 
 detail.— Te.] 
 
THE SPECIAL SUBJECTS OF JURISTIC STUDY. 201 
 
 scientific method. A scientific Division of Jurisprudence 
 must, however, be determined by regard to the principal 
 conceptions of the system, and not by reference to 
 merely accidental 'circumstances, nor to the convenience 
 of academical lectures, nor to the particular objects of 
 certain writers, nor even to the way in which the 
 Eomans or the modern nations have arranged their 
 systems. The conception of individual Eight has been 
 usually taken as the principle of a Scientific Division of 
 the subject. But as this conception is correlative to that 
 of obligation, this mode of division might just as well 
 proceed from the idea of Obligation as from that of 
 Eight. In order to avoid this arbitrariness, it thus 
 becomes necessary to put the higher conception of Law, 
 which includes both these conceptions, at the head of the 
 Science. According to the various more or less general 
 facts under which the laws impose obligation, the 
 particular parts of the system of Eight arise, but the 
 manifold connection of the jural principles and positions 
 hardly makes it possible to form such a Division as 
 would assign a distinctive place to each principle, so 
 that it would be excluded from every other part of the 
 system. Under reference to the main points of view 
 thus indicated, the following are the divisions and 
 sub-divisions of the science which naturally arise in a 
 system of Positive Law : — 
 
 1. Peivate Law, subdivided into 
 
 A. Civil Law ; 
 
 B. Ecclesiastical Law ; 
 
 C. Police Law ; 
 
 D. Criminal Law ; 
 
 E. Process Law. 
 
202 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 2. Public Law, to which belong 
 
 A. Constitutional Law ; 
 
 B. Administrative Law ; 
 
 C. Financial Law ; 
 
 D. International Law. 
 
 The Exposition of the general conceptions involved 
 in and justifying these Divisions belongs to juristic 
 Encyclopaedia. 
 
THE SCIENTIFIC MEANS AND APPLIANCES OP 
 JUEISTIC STUDY. 
 
 1. Juristic Philology. 
 
 A KNOWLEDGE of the Language in which any given 
 laws are composed, is absolutely necessary as the con- 
 dition of studying and understanding them. With refer- 
 ence to the actual Sources of Law, a knowledge of Latin 
 and Greek is requisite for the study of the Eoman 
 system of Law, along with a knowledge of the modern 
 language in which the Laws of the student's country are 
 presented. On account of the great change which the 
 Greek and Latin languages underwent in the age that 
 followed the period of the classical writers, the philo- 
 logical study of the Jurist must extend beyond the usual 
 limits of classical philology. As in the case of all linguistic 
 study, it must be both lexical and grammatical. The 
 former is certainly the more essential for an intelligent 
 understanding of the sources. Grammatical knowledge, 
 however, also facilitates this study ; and it is specially 
 indispensable when a critical treatment of the Text must 
 be combiaed with the interpretation of it.^ 
 
 ' Latin Juristic Philology, (a) For the Study of the Classical Jurists : — 
 Brissonius, De Verborum quse ad jus pertinent Significatione, Frankf. 
 
204 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 2. Juristic History and Legal Antiquities. 
 
 1. Every system of Law is coincident with the course 
 of the development of the people to which it belongs, and 
 with the whole past history of the community in which 
 it is formed. Hence an exact knowledge of History, in 
 so far as it is connected with the development of Law, 
 is specially necessary for the Jurist. For the purposes 
 of the Jurist, the History of the Eoman people and of 
 the Christian Church ought to be studied, as well as the 
 History of his own country. In this historical study, 
 attention is not to be directed merely to the various facts 
 which have exercised an immediate influence upon the 
 Sources of Law and the jural Eelationships, but the 
 attention of the student must also and mainly be given 
 to the general character of the People as it is revealed 
 in their social history, as well as to the changes gradually 
 
 1557 (Ed. Heineceius, Halle 1743). — Dirksen, Manuale Latinitatis 
 fontium Juris Civills Komanovum, Thesauri Latinitatis Epitome, Berolini 
 1837. (h) For the later and Medimval Latin : — Da Cange, Glossarium ad 
 Scriptores mediae et infimae Latinitatis (Paris 1678). Enlarged Ed. 
 1733-36. New Ed. by Henschel, Paris 1840. 
 
 For the Greek Texts : — Glossae Nomicse, Ed. by Labbaens, Paris 1606, 
 1629. In Otto's Thesaurus, by Schnlting, 1697. — Du Cange, Glossarium 
 ad Scriptores mediie et infinife Graecitatis, Lugd. 1682. 
 
 [For the technical terms in English Law ; — Rawson's Pocket Law Lexicon, 
 explaining Technical Words, Phrases, and Maxims of the English, Scotch, 
 and Roman Law, etc. 2nd Ed. 1884. Wliarton's Law Lexicon, Forming 
 an Epitome of the Law of England, and containing full Explanations of 
 the Technical Terms and Phrases thereof, both ancient and modern, etc. 
 Ed. by Lely, 1883. Sweet's Dictionary of English Law, Containing 
 Definitions of the Technical Terms in modern use, etc., 1882. 
 
 [For Scottish Legal Terms : — Bell's Dictionary and Digest of the Law of 
 Scotland. Ed. by G. Watson, M.A., Advocate, New Ed. 1887. Most of 
 the archaic Scottish terms iu Skene's De Verhorum Significatione (1599) 
 are incorporated in Bell's Dictionary. — Tk.] 
 
MEANS AND APPLIANCES OF JURISTIC STUDY. 205 
 
 effected by external events in their public and internal 
 relations. This study is requisite in order that the 
 student may learn to understand the general founda- 
 tion out of which the Law of every age has arisen. 
 ' Antiquities ' are not essentially different from History, 
 in so far as the historian represents the internal state of 
 society in past times, the subject of Antiquities being 
 nothing else than the description of the whole condition 
 of a State according to its various relations at a particular 
 point of time. Historical Antiquities, or Archaeology, 
 may accordingly be described as a detailed and connected 
 representation of those sections of a history which are 
 devoted not so much to events, as to their influence 
 upon the State. And hence it is evident that the study 
 of Antiquities must be combined with that of History, 
 and especially is this the case in the study of Law. 
 
 2. The History of Law, in the wider sense of the 
 term, stands in a still closer connection with Jurispru- 
 dence as a narration of the changes which Eight and Law 
 have undergone. It is usually divided into external and 
 internal History. The former contains the history of 
 the Legislative power, of the Juristic Literature that has 
 become a source of law, and of those Institutions which 
 have exercised influence upon the formation of Law. 
 The internal History, again, should comprehend a repre- 
 sentation of the changes that have taken place in the 
 principles and propositions of Eight, and the transforma- 
 tions of the juristic doctrines that have been effected by 
 Laws, Literature, and Practice. But the external and 
 the internal history of Law are not two different parts 
 of the science, but only different sides from which it can 
 be treated according as attention is mainly given to the 
 causes of jural changes, or only to these changes as 
 
206 THE SCIENTIFIC STUDY OF JURISPRUDENCE. 
 
 effects. Formerly, these subjects were treated apart in a 
 special History of Eight and Law (historia Juris, historia 
 legum), and in the Legal Antiquities as containing the 
 historical materials in their several details. The internal 
 and external Histories were afterwards combined, and 
 treated in periods according to certain chronological 
 divisions. As a history of Law cannot be understood 
 without a certain knowledge of the principles of Eight, 
 and as the survey of the history of the several doctrines 
 is impeded and made almost impossible by dividing the 
 narrative into separate sections, it has lately been found 
 very convenient in treating the Eoman Law to combine 
 the history of the Law with the exposition of the 
 Institutions; and this has been done in such a way 
 that the external history of the Law is treated by itself, 
 while the internal history is brought into connection 
 with the several doctrines of the legal system. Every 
 system may naturally be treated according to a similar 
 method. The rules for the regulation of historical 
 inquiries in the Sphere of Law, are generally the same 
 as hold in all other historical investigations. In legal 
 history, however, a preliminary examination of the 
 material is always necessary in order to distinguish the 
 historical elements of the Law from those that are not 
 historical, and in order to be able thereby to distinguish 
 properly the changes in the legal system itself, from the 
 progress made in Jurisprudence as the knowledge of it. 
 It is further evident that the first mention of a jural 
 ■ principle, or of a legal proposition in the existing sources, 
 is not to be at once regarded as its actual introduction 
 into the system to which it belongs. This consideration 
 has been so little attended to by several juristic writers, 
 that it is not unnecessary to call attention expressly to 
 
MEAKS AND APPLIANCES OF JUKISTIC STUDY. 207 
 
 it. As in the case of every other department of 
 historical science, legal history has to explain the 
 historical phenomena in its own sphere as far as possible, 
 and to trace out their principles and reasons. Here, 
 however, the greatest caution is necessary in order to 
 avoid false explanations. 
 
 3. In former times, it was usual to regard the study 
 of the History of Law as well as of the accompanying 
 philological and historical branches, mainly as a part 
 of the complete general culture of a Jurist, without 
 attributing to it any other importance than that of an 
 elegant accomplishment. But these departments of 
 study are unquestionably of great practical value. This 
 practical utility may be regarded as consisting, either in 
 their furnishing a knowledge of excellent juristic insti- 
 tutions which have been wrongly abolished, and of 
 vanished jural principles which deserve to be brought 
 again into force, or they may be viewed as supplying 
 the necessary means for attaining a complete under- 
 standing and a correct treatment of the valid sources of 
 Law. That the history of Law is indispensable to the 
 study of the existing system, follows at once from the 
 historical process of formation through which every legal 
 system has passed ; and this holds specially true of the 
 modern systems, for which historical elucidation is 
 indispensable, in order that they may not be misunder- 
 stood on many sides or falsely applied.^ 
 
 ' [The general standpoint and scope of the present work is to inculcate 
 and guide prosecution of the study of Law according to the historical 
 method and upon an historical basis, but only a few leading works out 
 of the vast Literature relevant to this section can be indicated here. 
 
 [History and Antiquities of Soman Law, — Gibbon's History of the 
 Decline and Fall of the Roman Empire (1776-1788) (especially the 
 splendid chapter (xliv.) on the Roman Law). Niebuhr's Lectures on 
 
208 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 3. Juristic Henneneutics. 
 
 By means of the philological and historical Methods 
 thus indicated, a preparation is made for an understand- 
 ing of the Laws contained in any system, as regards the 
 language in which they are composed, the objects of 
 which they treat, and the relationships which they 
 regulate. But in addition to these preparatory methods, 
 there must further be an application of Hernieiuutics, or 
 the scientific principles of Interpretation, in order to 
 discover and unfold the thought contained in every 
 
 Roman History and History of Rome (Ed. by Dr. L. Sehmitz). Momm- 
 sen's History of Rome, 4 toIs. (Transl. by Professor Dickson, D.D.). 
 Ramsay's Manual of Roman Antiquities, 10th Ed. 1876. Heineccii 
 Autiquitatum romanarum jurisprudentiam Olustrantium syntagma. 
 Frankf 1771, Leuw. 1777. (See p. 135, supra.) 
 
 [English Law. — For the History of England generally a reference may 
 suffice to the Histories of Hume (Student's abridged Hume with continua- 
 tion, 1879), J. R. Green (A Short History of the English People, 1877 ; 
 The Making of England, 1885), and the classical works of Macaulay, 
 Fronde, Freeman, etc. English Constitutional History : — Hallam's Con- 
 stitutional History of England (with Macaulay's Essay) ; Sir T. E. May's 
 Constitutional History of England (from George III. ) ; Prof. W. Stubbs' 
 The Constitutional History of England (1875), and Select Charters and 
 other illustrations of English Constitutional History (1876) ; Taswell- 
 Langmead, English Constitutional History, 1880 ; R. Gneist, The History 
 of the English Constitution (Self-Government, etc., Berlin 1871), Transl. 
 by Ashworth, 1886. English Constitutional Law : — Prof. A. T. Dicey, 
 Lectures on the Law of the Constitution, 1885 ; Walter Bagehot, The 
 English Constitution, 1867 (Delolme, Guizot, and Blackstone (Book 
 IV. of Public Rights), may also be referred to). History of English Law 
 and Antiquities: — Hale's History of the Common Law, Reeves' History 
 of the English Law, Crabb's History of the English Law (1829), and other 
 works by Spelman, etc., may be referred to. 
 
 [Scottish History and Legal Antiquities. — J. Hill Burton, The History 
 of Scotland, 8 vols. 1876. Walter Ross, Lectures on the Law of Scotland, 
 2nd Ed. 1822. Lord Kames' Historical Law Tracts, 1792 ; Elucidations, 
 1800. Cosmo Innes' Scotch Legal Antiquities, 1872. — Te.] 
 
MEANS AND APPLIANCES OF JUEISTIC STUDY. 209 
 
 passage of the Law. This process, as an interpretation 
 or exposition of the several parts of the written Law, is 
 different from merely translating it or commenting upon 
 it. Hermeneutics is properly a consistent representation 
 of the rules that are derived from Philology and applied 
 Logic, by which the meaning of the contents of a law, as 
 the thought originally embodied in it, is to be ascertained. 
 According as this thought is determined by an applica- 
 tion of grammatical rules, or by an examination of its 
 logical connection under reference to the principle of the 
 Law and the intention of the Legislator, the interpreta- 
 tion is called grammatical or logical. The difference 
 between these two interpretations does not consist in 
 the result that is attained, but only depends upon the 
 means applied for ascertaining the thought; in other 
 words, they are only different methods of interpretation. 
 It is also to be noticed that Interpretation does not aim 
 at any enlargement or limitation of the thought expressed, 
 but only at unfolding what the Law actually contains. 
 As regards grammatical Interpretation in particular, its 
 principal task consists in discovering how the accidental 
 and variable meaning of the terms is to be determined 
 by their connection, and in this relation it has to examine 
 the usage of the language employed. The necessary and 
 accepted signification of the terms and forms of speech 
 involved, is determined by the rules of general Philology. 
 — The logical Interpretation has been erroneously regarded 
 as proceeding according to an exegetical method peculiar 
 to the Jurist. But although it should be guided by a 
 knowledge of the laws which regulate the development 
 and connection of thought in the human mind, it rests 
 far more upon a certain natural tact that is trained by 
 exercise, than upon definite rules. — Again, Interpretation 
 
 
 
210 THE SCIENTIFIC STUDY OF JUEISPRTJDENCK 
 
 has been divided into doctrinal and authentic interpreta- 
 tion. But the term ' Interpretation ' is here, contrary to 
 all logical nile, used in an entirely different meaning 
 from that in which it is taken in the distinction between 
 grammatical and logical interpretation ; and, further, this 
 division is unimportant and superfluous, if interpretation 
 and legislation are to be distinguished from each other, 
 and not to be confused. — The scientific treatment of 
 Juristic Hermeneutics has taken an unfortunate direction 
 from the beginning. It started from a false idea of 
 Interpretation, and was, moreover, led astray by its idea 
 of logical interpretation, so that it stepped out of its 
 proper path, and turned rather to the application of the 
 contents of Law than to Interpretation proper. It has 
 been usual to receive into Juristic Hermeneutics historical 
 references to the Aids that are available to the inter- 
 preter, although they do not properly belong to it. In 
 any case, it is advisable that the hermeneutic conceptions 
 and principles be regulated by the study of general 
 hermeneutic works, and of writings on the interpretation 
 of classical and biblical authors.^ 
 
 ^ Eckhardt, Hermeiieutica juris (Ed. by Walch, Leipz. 1802, and 
 Conradi, Observationes juris civilis, I. Marb. 1783). Tliibaut, Theorie 
 der logischen Auslegung des rbm. Rechts, 2 Ed. 1806. Clossius, Her- 
 meneutilc des rSm. Kechts, Leipz. 1831. Pfeiffer, Elementa hermeneuticse 
 universalis, Jena 1743. Beck, Monogrammata de interpretatione vetenim 
 Scriptorum atque Monumeutorum, Leipz. 1790, 1791. 
 
 [The principles of Hermeneutics have been carefully examined and 
 expounded by the writers on Biblical Interpretation and Criticism, such 
 as Ernesti (Institntio interpretis N. T., Ed, by Walch, 1792), Dr. Samuel 
 Davidson, Keil, Doedes (Hermeneutics of the N. T., translated from the 
 Dutch), and others. — F. Lieber, Legal and Political Hermeneutics, or 
 Principles of Interpretation and Construction in Law and Politics 
 (American), 1880.— Tr.] 
 
MEANS AND APPLIANCES OF JURISTIC STUDY. 211 
 
 4, Juristic Criticism. 
 
 Textual Criticism stands in close connection with Her- 
 meneutics, especially where the application of Law is in 
 question ; for before the interpretation of a legal passage 
 can be complete, the genuineness of the written Law and 
 its several words must be made certain. This holds 
 especially where the legal Sources belong to older times, 
 and where they may have suffered alterations from various 
 accidents, such as the mistakes or negligence of copyists. — 
 The principles by which the genuineness of the Sources 
 and individual parts of the legal Text, is to be judged, 
 and the rules by which the restoration of the genuine 
 text is to be effected, are determined by the science of 
 Criticism. In relation to the object of the inquiry, it is 
 divided into higher and lower Criticism. In relation to 
 the means which it uses, it is called Conjectv/ral Criticism, 
 when it decides regarding the genuineness of a document 
 and its text merely from internal grounds, without direct 
 external historical testimonies. Conjectural Criticism 
 must not be regarded as a mere arbitrary guessing and 
 conjecturing, but as a careful examination that is guided 
 by the use of aU the available critical resources, and by a 
 regard to the spirit of the author ; and therefore, even 
 where external testimonies do occur, it is not to be at 
 once rejected, as it may well happen that grounds derived 
 from the internal connection may outweigh all external 
 testimonies.^ An application of Criticism without Inter- 
 pretation is not possible, as the necessity of critical exami- 
 nation must be determined on hermeneutic principles, and 
 the result of the criticism must be confirmed in like manner. 
 
 1 Cujacii, Observ. I. 1 : ' Plus ipsi rationi juris tribuo quam ulli 
 Scripturse. ' 
 
212 THE SCIENTIFIC STUDY OF JTOISPEUDENCE. 
 
 Nevertheless Criticism may be represented as an inde- 
 pendent theory distinct from Hermeneutics, and the 
 observations already made with regard to the study of 
 Hermeneutics will also in the main apply equally to 
 Criticism. — The testimonies by which Criticism has to 
 determine the genuineness of a text, are chiefly Manu- 
 scripts and such early printed Documents as may be put 
 on a level with them. The value of Manuscripts depends 
 mainly on their age ; and this is determined, partly by 
 the material of which they are composed, and partly by 
 the characteristics of the writing. Works on Criticism 
 usually give a general account of legal Manuscripts and 
 of old prints (palseotypes, incunabula) of which the 
 editiones principes are important. Opinions differ as to 
 whether Criticism is to be applied merely as an auxiliary 
 to Interpretation, or whether, apart from any such special 
 connection, the restoration of the genuine Text is to be 
 undertaken as an independent work ; but this question 
 has no influence either upon the resources or the prin- 
 ciples of Criticism. The application of Criticism in the 
 latter relation is directed, either merely to the removal of 
 apparently false Eeadings, or to a complete examination 
 of the received Text in its several parts. Such a com- 
 plete examination is indispensable to the perfect publica- 
 tion of an old author. In the case of Modern Laws there 
 is certainly not so wide a field for the application of 
 Criticism ; but even here there is no want of errors in 
 printing or in copying, and the juristic critic has to 
 exercise his function upon them so as to ascertain their 
 correct reading.^ 
 
 ^ Juristic Criticism is generally treated as a part of Juristic Hermeneu- 
 tics. Of general works on the principles of Criticism may be mentioned : 
 Clericus, ArsCritica, Amsterd. 1530. Morel, Siemens de Critique, Paris 
 
MEANS AND APPLIANCES OF JTJEISTIC STUDY. 213 
 
 5. Logical treatment of the material given by 
 Interpretation. 
 
 In the exposition of a System of Law, there are several 
 other scientific processes required in addition to that of 
 Interpretation, and differing essentially from it. When 
 the legal position contained in a passage of a given legal 
 Source has been ascertained, and, when requisite, eluci- 
 dated by Interpretation, it still remains to determine 
 its relation to other legal Principles, as well as to examine 
 whether the position ascertained is itself an independent 
 Eule, or merely expresses the consequence of a higher 
 Eule, and whether it is in any way altered or otherwise 
 modified by other authoritative legal regulations. The 
 
 1766. [The writers on Biblical Criticism and the authors of the numerous 
 recent Introductions to the 0. and N. T. have discussed the principles of 
 Criticism with fulness and care, e.g. Davidson, Keil, Bleek, Alford, 
 Scrivener, and others.] 
 
 [The study of MSS. , Codices, and early printed Sources, is of great im- 
 portance. The older works referred to by Falck (such as Pfeiffer, Ebert, 
 and Montfaucon) give the general positions, but are now largely out of 
 date. Most of the works on the Koman Law give an account of the MSS. 
 and early Editions of the Justinian Law-books {e.g. Muirhead's Historical 
 Introduction, Sect. 91). Most interesting is the record of the discovery 
 of the Palimpsest Codex of the Institutes of Gains by Niebuhr at Verona 
 in 1816, and of its subsequent editings (see Muirhead's Gains, 1880). The 
 publication and translation of the Old Irish (Brehon) Laws from MSS. is 
 suggestively described by Sir H. S. Maine in his Early History of Institu- 
 tions. And in general, the publications of the English Statutes by the 
 Record Commissioners in England, of the Acts of Parliament of Scotland 
 (Thomson — Innes), as well as of the Ancient Laws of Wales, and of 
 the Ancient Irish Laws referred to, are of the utmost importance for the 
 Student, who will find much valuable and interesting information in the 
 accompanying prefaces and explanations. The necessity of some know- 
 ledge of the tests of MS. authenticity in dealing practically with Charters, 
 legal Writs, Records, Titles, and other documents, is obvious. Cf. Elphin- 
 stone's Rules for the Interpretation of Deeds, with a Glossary, 1885. — Tk.] 
 
214 THE SCIENTIFIC STUDY OF JUEISPRUDENCE. 
 
 main point of view here always is that all the rules or 
 laws contained in the legal sources must be regarded as 
 having valid existence along with each other, until an 
 actual contradiction arises, in which case the later and 
 more general regulation receives the preference, unless 
 there are special legal grounds for accepting the more 
 special prescription. Accordingly, in order to facilitate 
 their application, the rules that are contained in a prin- 
 ciple, and that are reached by inferences from it, must be 
 so developed that a particular ease may be able to be 
 judged by simply bringing it under the rule. This 
 method — called the Ars Hermagorea by the ancients — 
 must be carefully distinguished from the special applica- 
 tion of a jural principle. For such application consists 
 always in the judgment of a particular case which can- 
 not be determined by rules, but is dependent on the free 
 exercise of the judgment, and does not involve the develop- 
 ment of new rules of law that are to be applicable to a 
 whole class of cases, although, as often happens, a par- 
 ticular case may give occasion to such a development. 
 The principle of this dialectical treatment of legal 
 positions may be expressed by saying that every 
 proposition that can be deduced by a strictly logical 
 combination or consequence from recognised rules of law, 
 is likewise a rule of law. Beyond this limit, however, 
 the function of the Jurist cannot reasonably extend ; for 
 every principle which cannot be justified in the manner 
 indicated, even although it might have equity on its side, 
 is only a result of arbitrary individual judgment, and 
 does not belong to the legal system. It can hardly be 
 supposed that the Eomans adopted other principles in 
 reference to this point, although they did not always 
 exactly distinguish between logical consequences from 
 
MEANS AND APPLIANCES OF JUEISTIO STUDY. 215 
 
 the laws and modifications that were introduced by 
 practice. However this may be, any freer maxim 
 regarding the treatment of legal right that would be 
 contrary to the logical relations of the legal constituents 
 of a system, cannot be now regarded as admissible. The 
 value of an earnest and thorough study of Logic hardly 
 requires to be pointed out in view of these considerations. 
 
 6. Knowledge of Foreign Systems and Comparative 
 Jurisprudence. 
 
 Acquaintance with the laws and the legal constitutions 
 of other States is not only important to the historian and 
 the politician, but is also fraught with much instruction 
 and advantage to the Jurist in the study of his proper 
 subject. It is to be regarded as of no small advantage 
 that the knowledge of the different forms, in which Eight 
 and Law have appeared among different peoples, is con- 
 ducive to a more varied examination and to a more careful 
 estimate of the legal system and institutions of one's own 
 country. Still more important, however, is the advantage 
 which may accrue directly to jurisprudence as a science, 
 both on its historical side and in its general theories, from 
 a wide study of the more important Eules of Law that 
 have prevailed among different peoples. As regards the 
 historical relation of this study, it is of chief importance 
 to show the agreement among the systems of different 
 peoples that is conditioned either by a historical connec- 
 tion between them, or by the similarity of their relations 
 and the stage of their development. In this way it 
 becomes possible to elucidate and explain one legal system 
 by the aid of the others. Further, the object in view may 
 partly be to ascertain the uniformities in the changes of 
 
216 THE SCIENTIFIC STUDY OF JUEISPEUDENCE. 
 
 Eights, and to examine the laws by which these changes 
 may arise. As regards the universal science of Law, 
 however, the study of ever so many systems, and historical 
 investigation of the rational principles accepted generally 
 by the peoples, cannot take the place of a derivation and 
 development of the Principles of Eight independently of 
 History. But a Comparative Jurisprudence (as the scien- 
 tific treatment of foreign systems for the purpose in 
 question may be called), will always be conducive as a 
 means to the establishment of the rational rules of Law, 
 and to the confirmation of the general theory of Juris- 
 prudence. This it will accomplish by expounding and 
 developing the agreement of different peoples in matters 
 of Eight, as resting upon a similar apprehension, under- 
 standing, and judgment of the jural relationships (consensus 
 gentium). But if Comparative Jurisprudence is thus to 
 accomplish anything useful, either for the history or the 
 philosophy of Law, the study of the Foreign Systems must 
 not stop at mere general statements, but must be carried 
 out till detailed and particular knowledge of foreign prin- 
 ciples and institutions is attained, both in the sphere of 
 politics and law. It must further be evident that such 
 investigations must be directed to what are properly the 
 constitutive principles of Eight and Law, and not merely 
 to such propositions as may be deduced from the mere 
 linguistic usage of the peoples. There is already much 
 material collected for obtaining such knowledge of the 
 foreign systems of Law, but the scientific elaboration of 
 it as required for juristic purposes is still largely 
 awanting.^ 
 
 ' [The supreme importance of the application of the Comparative Method 
 to Jurisprudence is now universally recognised, and much progress has 
 recently heen made in this direction. It is the culminating characteristic 
 
MEANS AND APPLIANCES OF JURISTIC STUDY. 217 
 
 7. Juristic Bibliography, and History of Literature 
 and Doctrines. 
 
 The knowledge of what has been hitherto accomplished 
 for the promotion of a scientific knowledge of Law, is 
 naturally indispensable to every Jurist in order that he 
 may not, from ignorance, neglect the use of the resources 
 that are available for his study. Juristic Bibliography 
 has to indicate and specify the existing juristic works. 
 It is now almost impossible to give a complete enumera- 
 tion of all the products of Juristic Literature, and, in 
 practice. Bibliography is usually limited to an indication 
 of the more important and useful works. — The history of 
 Juristic Literature, or of the scientific treatment of the 
 subject of Jurisprudence, gives a survey of the changes 
 which the juristic writings have produced in the know- 
 ledge and formation of Law, and it should also charac- 
 
 and distinction of the Historinal School of Law (see the Preface to Kant's 
 Philosophy of Law). Austin advocates and professes to apply the prin- 
 ciples of the Comparative Method to Jurisprudence, but his standpoint 
 was too insular and his range of vision too limited to lead to any very 
 important result. A much more fruitful application of the Method is 
 made by Sir H. S. Maine, whose works are fuU of historical comparisons 
 and elucidations of an original, instructive, and often surprising kind. 
 (Ancient Law, and its relation to Modern Ideas, 11th Ed. 1887. Early 
 History of Institutions, 1880. Village Communities in the East and West, 
 4th Ed. 1883. Early Law and Custom, 1883.) These works have done 
 much to raise the conception of Law in England out of the narrow grooves 
 of Bentham and Austin's modes of thought, and to give breadth and uni- 
 versality to the Science of Law. The investigations of the students of 
 'prehistoric' Life and Custom (Sir John Lubbock, Tyler), and the Evolu- 
 tional School generally, are also important from the legal point of view. 
 The valuable work of Professor Carle of Turin (La Vita del Diritto, etc. ) 
 has been already referred to. The late Mr. Maclennan's contributions on 
 Primitive Marriage, etc. , also belong to this department. M. Laveley e's 
 works (La Propriety et ses Formes Primitives, 1882) are of acknowledged 
 interest and value. — Tk.] 
 
218 THE SCIENTIFIC STUDY OF JUEISPRUDEKCE. 
 
 terize the scientific efforts of the Jurists generally. The 
 Bibliography of Jurisprudence stands in close connection 
 with its literary history, only that the latter deals 
 specially with those writings which have exercised an 
 influence upon the progress of the Science."^ — The Bio- 
 graphy of the most important Jurists essentially belongs 
 to the literary History of the subject, but it is better to 
 subordinate it to the narration of the movement of the 
 Science than to make it a principal subject by itself. — 
 Wliatever method may be chosen in dealing with the 
 History of Juristic Literature, attention should always be 
 given to the changes that have taken place in the progress 
 of scientific culture generally, and the political events 
 that may be connected with the fates of Jurisprudence. 
 ■ — Further, the special literary History of the several 
 doctrines of Jurisprudence, is to be distinguished as the 
 History of Juristic Dogmas from the general literary 
 History of the Science. It has to exhibit the doctrines 
 and opinions of the older Jurists in their historical 
 sequence. This species of literary history is naturally 
 not treated by itself, but is always given in connection 
 with the systematic treatment of the jural doctrines ; but, 
 as it forms a very useful preparation for the scientific 
 
 ^ The oldest work of a Bibliographical nature is Ziletti's Index 
 librorum omnium juris tarn ponti&cii quani Csesarii, Yen. 1566. The 
 most complete work (in alphabetical order) is Lipenii, Bibliotheca realis 
 juridica, 1676. (Post Struvii et Jeuichenii curas emendata et looupleta, 
 Leipz. 1757. Supplemented by Senckenberg, 1789, and Madihn, 
 Breslau 1817, 1820 ; an abridged Ed. by Buder Struvii Bibliotheca juris 
 selecta, Jena 1756.) The German Literature is given by Ersch, Literatur 
 der Jurisprudenz nnd Politik, 2 Ed. 1823. The Literature on Natural 
 Law is given by Meister (Bibliotheca juris naturte et gentium, 3 pts. Gijtt. 
 1749-57) ; and that on International Law by V. Ompteda (Litteratur des 
 gesammten sowohl natlirlichen als positiven Volkerrechts, 2 Bd. 1785, 
 continuation by Kampz from 1784 to 1816, Berlin 1817). 
 
MEANS AND APPLIANCES OF JURISTIC STUDY. 219 
 
 treatment of a doctrine, it ought not to be neglected by 
 the jurists. It need hardly be said that any such 
 historical representation of former opinions ought to be 
 complete, and if the changes that have passed upon the 
 views taken of the subjects of Jurisprudence deserve to 
 be known at all, they ought to be traced from their first 
 beginnings down to our modern times. — Thus the History 
 of the Doctrines that have been held regarding the Eomau 
 Law should begin with the opinions of the Scholiasts on 
 the ' Basilica,' then pass to the Glossators, and next 
 advance to the Jurists that follow them. The general 
 literary History of Jurisprudence, is necessarily pre- 
 supposed as requisite to a complete understanding of its 
 doctrinal History.^ 
 
 ^ On the Literary History of Law: — Nettelbladt, Initia historise 
 literarise jurid., Leipz. 1779. Konig, Lehrbuoh der allgemeinen juristisohen 
 Literatur, Halle 1785. Haubold, Institutiones juris romani litterariae, 
 1809. G. A. Martin, Juristisclie Literargeschichte im Gnmdrisse, Heidel. 
 1824. (Savigny's History of the Koman Law in the Middle Ages and his 
 Law of Possession are excellent examples of special Literary History.) 
 
 [The Bibliography and Literary History of English Law are sketched 
 by Professor Brunner. In connection with English Law, reference may be 
 here made to ' Sweet's Complete Catalogue of Modern Law- Books, British, 
 American, and Colonial ; and a selection of such old books as are still of 
 value. Compiled by Herbert G. Sweet, with fuU index of subjects by J. 
 Nicholson, Librarian, Lincoln's Inn. 2nd Ed. 500 pp. 1883.' For the older 
 books, see the Bibliotheca Legum Anglice, by J. Won-al and Edward 
 Brooke, 2 vols. 1788 ; Republished as Clarke's Bibliotheca Legum, 1810. 
 R. W. Bridgman, Thesaurus Juridicns, 1798, 1800, 1806, 2 vols. ; and 
 Short View of Legal Bibliography, 1807.— Tk.] 
 
PAET IV. 
 
 PRINCIPLES OF JURISTIC METHODOLOGY. 
 
 OUTLINE OF AN ACADEMIC COURSE OF 
 JURISTIC STUDY. 
 
 BY 
 
 Dr. H. AHEENS. 
 
 2Cranelatei> from tfje ffierman. 
 
JURISTIC METHODOLOGY.^ 
 
 JuEiSTic Methodology has to furnish guidance to the 
 most suitable arrangement and mode of studying the 
 whole of Jurisprudence as the Science of Law, and it 
 specially aims at the right ordering of Academical 
 instruction in the subject. 
 
 The study of Jurisprudence has always followed 
 generally the spiritual tendencies and currents of the age, 
 and it has in modern times experienced in its own sphere 
 the same modifications and changes as other sciences. 
 At the present time it exhibits, in common with other 
 studies, a certain aversion to the pursuit of higher 
 principles and to the recognition of its connection with 
 the related Sciences, an isolating concentration upon itself, 
 a mere accumulation of material and treatment of details, 
 and, in consequence of all this, a more or less materialistic 
 tendency that reflects the living movement of the age. 
 It has come about in Jurisprudence that the belief in the 
 higher principle of Right, which is the animating soul of 
 the Science, has more and more disappeared, and the 
 spiritual aspiration of the young student has been 
 suppressed by the mass of material heaped upon him. 
 And so much has the tendency to immediate pro- 
 
 1 [The reasons for introducing this short sketch here have been stated 
 iu the Preface. — Tk.] 
 
224 JURISTIC METHOLOGY. 
 
 fessional and utilitarian study gained the supremacy, 
 that he has been deprived of the necessary spiritual 
 freedom and leisure to apply his mental energy in the 
 requisite way to the universal culture of the Sciences ; 
 and even an indifference to all higher ends, and a sort of 
 spiritual deadness and moral indifference, have been always 
 coming more to the front in the whole sphere. While 
 the duty of remedying this condition is incumbent upon 
 the official authorities, especially in the Universities, yet 
 salvation from these evils must be essentially expected to 
 come from the insight of the teachers, and especially 
 from the efforts of the students themselves. We there- 
 fore claim their consideration and examination of the 
 following counsels, as suggesting the conditions of re- 
 moving the evils referred to. 
 
 1. Philosophical study, as the basis of aJl general 
 human culture as well as of all professional culture, 
 requires to be animated anew. In some Universities the 
 arrangements are made so that the students shall have com- 
 pleted their philosophical training before they are admitted 
 to their professional study. This method, although 
 approved by distinguished thinkers like Schleiermacher, is 
 subject to the important objection that it separates in too 
 abstract a way the study of Philosophy from the study of 
 Law, which it ought to accompany and permeate. It is 
 correct enough, however, to hold that, in the first stage of 
 academic study, predominance should be given to the 
 cultivation of the universal formative sciences. If 
 Philosophy were based upon an analytical foundation, as 
 has been done in Krause, the study of it might be most 
 suitably begun in this way. 1. In default of such an 
 introduction, a beginning should be made with Psychology 
 (Psychical Anthropology), which is not merely of formal 
 
A COUESE OF JUEISTIC STUDY. 225 
 
 importance like Logic, but is of the utmost importance 
 in itself as the science of the essential nature of man. 
 Psychology is thus the chief foundation for Ethics or Prac- 
 tical Philosophy generally, as well as for the Philosophy of 
 Law, and in particular for the subject of Criminal Law, 
 and in its own sphere it can best refute the shallow 
 materialism of the time by close scientific observation. 
 2. Next to Psychology, Ethics should form the second 
 subject of philosophical study, and it should be taken as 
 the systematic science of the whole of practical philosophy, 
 which in recent times has been treated in a profounder 
 and more comprehensive way. 3. Besides these two 
 philosophical sciences which are absolutely necessary for 
 every student, attention should be also given to the 
 further cultivation of the philosophical habit by the study 
 of works on Logic, and — according to the predominant 
 inclination — attention should be also given to Metaphysics 
 or ^Esthetics,' or the History of Philosophy. 
 
 2. The special study of Jurisprudence ought to begin 
 with Lectures on Juristic Encyclopwdia and Methodology, 
 unless a course on the Philosophy of Law take their 
 
 ■^ [The subject of Esthetics may seem to have no affinity or relation to 
 the Science of Law, however great may he its attractiveness to the 
 student for, its own sake. But the recent profounder thinkers in the 
 department of Jurisprudence have fully recognised the right of Art, as an 
 essential element in the social organism, to the same kind of recognition 
 and guardianship on the part of the State as may be claimed for Religion 
 and Science, or even Industry. Krause, Rbder, and Ahrens are distinct and 
 suggestive in dealing with the jural relationships of Art, according to the 
 piinciples of the organic School of Law. Reference may be made to the 
 excellent chapter on the subject in Professor Lioy's Philosophie du Droit 
 (1887) ; and in view of the prominence which that distinguished writer 
 gives to the Hegelian JLsthetic, the Translator may be also allowed to 
 refer the student to his recent publication, The Philosophy of Art, An 
 Introduction to the Scientific Study of Esthetics. By Hegel and C. F. 
 Michelet. Edin. 1886.— Tk.] 
 
 P 
 
226 JURISTIC METHODOLOGY. 
 
 place. Juristic Encyclopaedia, however, should not be 
 dealt with in a merely formal way, according to the older 
 dry and barren method, but it ought to expound the 
 fundamental conceptions of the science, and to exhibit 
 the connection of all its parts. The great advantage, and 
 even the necessity of such an introductory course, cannot 
 be questioned by any one who understands the mental 
 conditions involved in the introduction of the young 
 student to a science that embraces many branches and 
 covers a very extensive field of knowledge. Any other 
 view can only be accounted for by the fact that there is 
 no recognition of a common principle and connection in 
 all the parts of the science, and that the special profes- 
 sional study of Law is only pursued as a learned trade. 
 By its very nature, the Encyclopaedic Introduction should 
 form the commencement of the study of Law, a position 
 which has been assigned to it by the practice of a century. 
 3. We do not require to spend a word in further 
 showing the necessity of a study of the Philosophy of 
 Lav). It is to be lamented that in consequence of the 
 abstract and formal treatment of the principle of Eight, 
 the Philosophy of Law has been often expounded by men 
 who had hardly a spark of the philosophic spirit in them- 
 selves ; but as this abstract standpoint has been long 
 since overcome by the progress of modern science, those 
 who show that they have not advanced in their concep- 
 tions of Law beyond the old forms of ' Natural Eight,' 
 and who have not grasped the newer and higher forma- 
 tion of the subject, have really no right to pass a judg- 
 ment upon such a Philosophy of Law. Different ^iews 
 are held regarding the place of the Philosophy of Law in 
 the study of Jurisprudence. If the beginning is made 
 with a course of Encyclopjedia, and if some study of the 
 
A COXmSE OF JURISTIC STUDY. 227 
 
 Eoman Law — at least in the Institutes — has been 
 carried on, the Philosophy of Law will then appropriately 
 come in, and it will furnish the means of carrying on a 
 desirable and instructive comparison of the philosophical 
 conceptions with the positive facts of law. With a view 
 to this order, the fundamental philosophical principles of 
 the science ought to be somewhat developed at the outset 
 in the encyclopaedic course. 
 
 4. It appears to be especially important to draw the 
 attention of the Jurist to the much neglected study of 
 Social Economics and Political Ecoiwmy. The former of 
 these, as the economic basis of the law of real Property 
 and Obligations, should be early studied, if not along 
 with the Eoman Law, at least with the first course of 
 lectures on Positive (municipal) Law. On the other 
 hand. Political Economy, as well as the political sciences 
 generally, may be taken up at a later period of study. 
 
 5. The Historical Studies connected with the subject, 
 as well as the special history of the particular depart- 
 ments of Law, have been thrown too much into the 
 background by the more positive departments, and they 
 deserve again to be more carefully cultivated. 
 
 6. Finally, the Political and Constitutional Sciences 
 ought to have greater attention given to them, and all 
 the more because here the earlier studies must be 
 essentially corrected and even transformed. Further, it 
 is important that the young student should be made 
 acquainted with the more correct political doctrines, 
 otherwise he will be likely to take his knowledge from 
 the large number of works produced by the older 
 abstractly liberal and radical school, works which are 
 most easily understood from their very superficiality, and 
 which otherwise flatter many of the tendencies to which 
 
228 JUEISTIC METHODOLOGY. 
 
 the young student is most ready to yield. In order 
 to guard him against erroneous views, it is therefore 
 requisite to deal with these subjects scientifically. 
 
 In the arrangement of the Study of Law, it ought to 
 be held fast as a general guiding principle that Jurispru- 
 dence is to be taught and learned on its three essential 
 sides as philosophical, historical, and positive Science, and 
 that these three sides of the subject are not to be 
 separated from each other, but are to be taken up and 
 studied together. 
 
 According to the positions thus indicated, the 
 following series of Lectures might be recommended 
 for a three years' curriculum in the Faculty of Law, 
 each year including two Sessions (Winter and Summer 
 Sessions) : — 
 
 First Yeae : 1st Session. Juristic Encyclopaedia ; 
 
 EomanLaw; Psychology; National 
 
 Economy. 
 2nd Session. Constitutional History; 
 
 History of Law ; Pandects ; Ethics 
 
 (Practical Philosophy). 
 Second Year : 1st Session. Positive Private Law ; 
 
 Ecclesiastical Law ; Philosophy of 
 
 Law; History. 
 2nd Session. Positive (municipal) 
 
 Law ; Criminal Law ; Public Law ; 
 
 International Law ; Statistics. 
 Third Year: 1st Session. Civil Process -Law; 
 
 Criminal Process -Law; Medical 
 
 Jurisprudence ; Administrative 
 
 Politics ; Philosophy or History. 
 2nd Session. Commercial Law ; 
 
 Political Economy; Science of 
 
 Finance ; Lectures on Practice and 
 
 Leo'al Forms. 
 
PAET V. 
 
 DErmiTION AND HISTORY 
 
 OF 
 
 JUEISTIC BNCYCLOPJIDIA AS THE SYSTEMATIC 
 SCIENCE OP JUEISPRUDENCB. 
 
 De. ALEXANDER FEIEDLANDEE. 
 
 Cranslateli txom t\it ffierman. 
 
INTRODUCTION. 
 
 CONCEPTION AND HISTORY OP SYSTEMATIC ENCYCLO- 
 PEDIA, AS THE SCIENCE OP THE SCIENCES. 
 
 1. Conception of Scientiflc Encyclopssdia. 
 
 1. Science is a living organism, and has as such a 
 supreme positive principle of life. The essential function 
 of Scientific Encyclopaedia, is to show what is the idea 
 that animates the several members of this organism. 
 
 2. As Encyclopsedia has to deal with the development 
 of the idea of Science, it is itself a Science, In other 
 words, it is the ' Science of the Sciences.' 
 
 3. Hence, by its very nature, it cannot properly consist 
 either of a merely external and mechanical arrangement 
 of relations, nor of a loose aggregate and conjunction of 
 separate propositions. It often appears, however, as the 
 former, in the so-called external or ' formal Encyclopaedia ;' 
 and as the latter, in the so-called internal or ' Material 
 Encyclopcedia.' Nor is its true nature realized in the 
 attempts made to produce a whole made up of both, so as 
 to give at once an External and Internal Encyclopwdia ; 
 for a proper whole cannot arise out of the union of two 
 arbitrarily separated things. 
 
 4. The central principle of every Scientific Encyclopaedia 
 is rather to be found in combining the material presented 
 to the Science with its essential idea, thus connecting what 
 
232 SYSTEM OF JUEISPEUDENCE. 
 
 is scattered in detail into an inner unity. This is what 
 is called a System ; and a systematic Encyclopedia of a 
 Science is just its organism translated into conceptions. 
 
 5. The method of a systematic Encyclopaedia is the 
 external form of its construction, corresponding to its 
 internal unity as a system. It is conditioned by that 
 internal unity, and it excludes from itself all mere dead 
 compendious aggregation of material details. Such a 
 scientific Encyclopsedia does not require any special 
 methodological appendix to show in what order the 
 various branches of the Science should be studied. 
 Eather will this order be indicated in the encyclopsedic 
 representation of the Science when the correct method 
 is pursued. 
 
 2. General Sketch of the History of Scientific Encyclopaedia. 
 
 1. Here, as so often happens, the subject itself is older 
 than its name. Among the Greeks, the terms (^E<yKVKkLO<i 
 TraiBeia and fiaOijfiaTa iyKiiKXta) signified originally, and 
 according to their etymology, the circle of the arts and 
 sciences prescribed for the education of a free-born citizen ; 
 and ia this sense they coincide with the Mova-iKrj of Plato, 
 as designating the whole range of the Greek culture. The 
 Eomans indicated the same thing by the expression orbis 
 doctrinarum (Quinctilian, Instit. Orat. i. 1 ; Vitruvius, 
 i. lib. vi. prsef.). This correct designation was gradually 
 abandoned, and as the word Encyclopaedia was resolved 
 into its three elements {iv, kvk\o<;, TraiSeia), it came to 
 signify the system or circle (/cu/cXo?) of all the Sciences. — 
 The real founder of such a systematic Encyclopsedia was 
 Aristotle, who not only created a new terminology, but 
 sketched in his Logic, in magnificent style, an architectonic 
 
NATURE OF SCIENTIFIC ENCYCLOPEDIA. 233 
 
 system of the sciences. — In consequence of the pragmatic 
 dogmatism of the subsequent philosophical schools, the 
 genuine philosophical spirit disappeared, and rhapsodical 
 learning took the place of free inquiry, and knowledge 
 became separated from life. Science found a refuge in 
 the libraries of the Ptolemies at Alexandria, where were 
 collected the products even of the most mechanical 
 erudition. The several sciences thus grew in extent, 
 while their contents became always poorer. Thus arose 
 the age of the collections and compilations, from a desire 
 to master the wealth of books ; and whereas the mind 
 formerly strove to control and spiritualize the material 
 of knowledge, it was now subdued by it. Hence the 
 appearance of the many soulless excerpts from the Eoman 
 and Greek writers, which, however, in this way saved 
 much that was good from destruction. The Grammars 
 and Dictionaries of the Alexandrian School were the off- 
 spring of the same impulse, but in these works a higher 
 scientific spirit prevailed. There too, in like manner, the 
 so-called Trivium and Quadrivium took their rise as a 
 collective expression for all scientific education, and who- 
 ever undertook to write an Encyclopaedia kept by them as 
 his guide. To this tendency we owe the Satyricon of 
 Martianus Capella, which was originally designed for use 
 in the Monasteries and Schools, and which was afterwards 
 edited by Hugo Grotius. So early as the seventh century, 
 we have also the Encyclopedia of the Spanish Bishop 
 Isidore of Seville. But in these works we seek in vain 
 for any proper systematic connection, as they contain 
 only aggregates of the concrete materials of knowledge. 
 
 2. In the Middle Ages, the circle of knowledge was 
 enlarged by contact with Eoman and Arabic culture, 
 and the Encyclopasdias of the time attained some per- 
 
234 SYSTEM OF JUEISPKUDENCE. 
 
 manent significance by their presentation of a connected 
 summary of the most important sciences according to 
 their principal contents. Efforts in this direction received 
 a living impulse from the establishment of the Universities 
 and their division into four Faculties, which livingly 
 represented that to which the Encyclopaedias aimed at 
 giving written expression. And thus it was the Universi- 
 ties which properly formed the transition from the 
 Scholastic Encyclopaedias to more comprehensive works of 
 the kind. To this period belong two encyclopffidic master- 
 pieces, which in a most worthy manner open the series, 
 and which, surviving their age, have not yet entirely lost 
 their value. We refer to the work of Gerbert (Pope 
 Sylvester II.), entitled, Figura de Philosophice partihus, 
 and the well-known Speculum Majus or quadrvplex of 
 Vincent of Beauvais (1250). Both of these works were 
 saturated with Arabic wisdom ; and the treatises of the 
 Spaniard Vives {De Bisciplinis, 1531) and of Eeusch 
 {Margarita Philosophica, Friburgi 1503), deserve to be 
 associated with them. 
 
 In the Middle Ages, as these attempts succeeded and 
 superseded each other, such designations were appKed to 
 them as Summa, Speculum, Eeceptaculum, Beehive, etc. 
 But in the second half of the sixteenth century the name 
 Cyclopmdia, and afterwards Encyclopmdia, was chosen ; and 
 it has been retained ever since. The basis of these 
 so - called ' Encyclopaedias ' was formed by a mass of 
 undigested historical material in detail, and the folios 
 thus produced were only acceptable to the specially 
 learned class. Hence it is that, including even those 
 that appeared up to the Eighteenth Century, these works 
 are now for the most part neglected or have disappeared. 
 — A more permanent influence, however, was obtained by 
 
NATURE OF SCIENTIFIC ENCYCLOPEDIA. 235 
 
 two undertakings of the same kind and spirit that were 
 published in the Eighteenth Century. These were the 
 great encyclopsedic Dictionary of the Chancellor Ludewig, 
 in HaUe,* which appeared in sixty-four folio volumes 
 (1735-1751), and which from the name of the publisher 
 is usually called the ' Zedler Encyclopaedia ; ' and the 
 still greater French ETicyclopidie MMJiodique (1782-1832) 
 in 166 volumes. 
 
 3. These two directions and mpthods, which may be 
 designated as the philosophical and the empirical, were 
 united in an intellectual and learned way by the brilliant 
 talent of Lord Bacon of Verulam (1561-1626). His 
 De Dignitate et Augmentis Scientiarum (1623), in its 
 form and contents, bears the stamp of the independent 
 philosophical inquiry of its author, and became the 
 Organon of his age, as well as a model for similar 
 creations in later times. — The great creation of the so- 
 called French Encyclopaedists arose from a similar 
 dissatisfaction with the knowledge and life of their time. 
 It took a one - sided attitude towards the subject of 
 religion, and the wide and powerful influence which it 
 obtained over all Europe, was mostly due to the literary 
 reputation of its chief collaborateurs, Voltaire, Diderot, and 
 D'Alembert. No work aiming at universality of knowledge 
 has ever had a more brilliant success. In France the most 
 strenuous efforts were put forth for a time to satisfy by 
 such works both the wants of the educated classes and the 
 general demands of the time, and thus to effect a media- 
 tion between life and science. But both in France and 
 in Germany, the same causes have operated to prevent 
 the complete success as yet of so great an undertaking. 
 
 When human hfe, in the incessant progress of its 
 movement, and with its new inventions and discoveries. 
 
236 SYSTEM OF JURISPRUDENCE. 
 
 outstrips the slow march of Science, there cannot but 
 arise a discord between the position of the Schools and 
 that of practical Hfe. Hence, when the circle of know- 
 ledge expands, the longing for mere acquisition of 
 learning makes itself more widely felt than that after 
 profound and independent inquiry. Thus there arises 
 the twofold demand for a mediation, on the one hand, of 
 life with knowledge, and for a satisfaction of the thirst 
 for knowledge on the other ; and it is the function of a 
 universal Encyclopaedia to satisfy this demand, if it will 
 deserve the name. Such an undertaking, however, 
 belongs to the most difficult and yet unsolved problems. 
 In Germany the effort has been made, in the greatest 
 possible detail, to give a historical representation of the 
 material acquired by Science, and hence the great number 
 of Lexicons and so-called ' Eeal-Encyclopsedias,' which, 
 notwithstanding their various merits, only unite in an 
 external way the full material of human knowledge. 
 
 The great philosophers of Germany have applied the 
 conception of scientific Encyclopaedia to the formal 
 organism of the Sciences. Schelling's Lectures on the 
 Method of Academical Study (180.3) do not, however, 
 pass beyond the circle of the Schools, and they are 
 lacking in necessary clearness. Hegel's Philosophical 
 Propadeutik and his Encyclopcedia of the Philosophical 
 Sciences, although flowing from one idea and connected 
 throughout into a unity, go far beyond the living interests 
 of the greater circle of readers by their very philosophic 
 depth. And the same may be said more or less of 
 various other philosophical works of the kind that need 
 not be dwelt upon here. 
 
DEFINITION AND HISTORY OF JURISTIC ENCYCLO- 
 PEDIA AS A SCIENCE. 
 
 Definition. — Juristic Encyclopaedia is a systematic expo- 
 sition of the science of Jurisprudence. It has to show 
 what is the place and sphere of Jurisprudence within the 
 whole domain of human knowledge, and to determine the 
 necessary connection of its various members and parts 
 according to the general idea of the Science. It is 
 evident that the encyclopaedic treatment of Jurisprudence 
 must go hand in hand with the gradual development of 
 the general encyclopaedic treatment of the Sciences. The 
 growth of the two springs from the same root, and thus 
 juristic Encyclopaedia is drawn into the process of the 
 common movement of knowledge as one of its inseparable 
 members. Its development, however, is conditioned by 
 special causes that flow from the distinctive nature and 
 the independent position of Jurisprudence. It is in con- 
 nection with these that the following historical review 
 wiU proceed. 
 
 History of Juristic Encyclopaedia. 
 
 1. When we go back to the dawn of culture in Greece, 
 it need not surprise us that we seek in vain for an Ency- 
 clopaedia, or systematic Science of Eight. There was still 
 awanting the condition presupposed by an Encyclopaedia, 
 namely, a developed system of Law with a defined exist- 
 
238 SYSTEM OF JUEISPEUDENCE. 
 
 ence of its own. The jural system of the Greeks had 
 not yet independently separated itself from the other 
 elements of the State. It coincided with the morals of 
 the people, and had not yet obtained a scientific elabora- 
 tion ; for the mobile spirit of the Greeks and the want of 
 juristic terminology stood in the way of this being done. 
 The solution of this problem was reserved for the Eomans, 
 who were pre-eminently the people of juristic science, and 
 in this their whole intellectual effort was merged. Their 
 system of Eight and Law was developed through concrete 
 realization ; and upon this broad basis grew up the long- 
 ing to make the intellectual substance of the relations of 
 life, and what was immediately demanded by the practical 
 necessities, consciously their own. Moving in an unfruit- 
 ful Eclecticism of thought, they gathered from the existing 
 material what had fresh, living existence in time. In thus 
 taking up the realities of Law into their system, they 
 certainly escaped the danger of losing its connection with 
 life, but they also had to lose the advantage of having it 
 united into a whole by a fundamental thought. Hence arose 
 the labour of compilation. The most conspicuous effort of 
 the kind was that which is stamped with the name of the 
 Emperor Justinian (529-534). A mirror of the jural 
 conceptions and the legal realities of its age, it is also to be 
 regarded as the first juristic Encyclopaedia. The Justinian 
 system, however, wanted the power of generalization. In 
 its form it was only an aggregate of particular details. 
 It realized merely in a higher degree what had been 
 attempted before Justinian, and what was also attempted 
 after him by other Emperors. This Collection was not 
 only a Law-book but a Text-book ; and it served as a 
 
 basis of juristic study in the public schools of Law. The 
 
 Glossators of the twelfth and thirteenth centuries attempted 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 239 
 
 to supply a general basis for this scattered material, and 
 they made it their vocation in life to explain the Eoman 
 Law scientifically, and to apply it practically. Having 
 undertaken these two functions, it might be expected that 
 they were specially qualified to give a scientific expression 
 to the juristic material of their time. Their instruction 
 aimed at facilitating the understanding and at spreading 
 knowledge of the Eoman system of Eight, and their 
 literary activity was spent upon excerpts and general 
 surveys of the system. But in doing so they lost 
 the scientific foundation of the whole, and provided their 
 contemporaries only with writings which were entirely 
 subservient to the Justinian Compilation. They accepted, 
 proved, and defended the Justinian positions ; and while 
 their productions in the dogmatic treatment of Eight may 
 indeed be regarded as the beginning of independent 
 inquiry, they always bear the stamp of the Scholastic pre- 
 possession on their brow. Hence their Encyclopaedias, 
 known under the name of Apparatus or Summce, have 
 the character of lifeless and laborious epitomes. — From 
 this school, however, there arose a man thoroughly 
 equipped with juristic knowledge, who moved in the 
 sphere of Jurisprudence, after the example of the most 
 famous teachers of the new University of Paris. At the 
 same time as Vincent of Beauvais wrote his Speculum 
 majus, he composed a Speculum juris, which was really 
 the mirror of the practical Eight of the civil and canonical 
 Law of the age. This was William Durantis, who left 
 the labours of the Italians, both formally and materially, 
 far behind him, and secured for himself the honourable 
 name of the ' Speculator.' Durantis has the same import- 
 ance in the history of juristic Encyclopsedia that attaches 
 to his great prototype in the history of Universal Ency- 
 
240 SYSTEM OF JUKISPEUDENCE. 
 
 clopsedia.^ But we have nothing more than this to show 
 from the products of the Thirteenth, or even the Fourteenth 
 Century. The increasing enlightenment of the time had 
 but little or even no influence upon Jurisprudence ; and 
 thus the universal Encyclopedia of BandLuus, entitled 
 Fons mirahilium universi, which was produced under the 
 influence of Petrarca, passed over Jurisprudence without 
 making an allusion to it. The science had then enough 
 to do to keep its place. With scholastic verbosity, it 
 plundered the writings of the Glossators and pursued its 
 ineffective efforts to find a criterion for the determination 
 of Eight, till it fell into the most irrational casuistry, the 
 creators of which have been well characterized by Cujacius 
 in the words : ' Verbosi in re facili, in difficili multi, in 
 angusta diffusi.' 
 
 2. The Science of Jurisprudence began to struggle out 
 of this unsatisfactory state in the fifteenth century, when 
 those great historical events took place by which the 
 spiritual and social life of the peoples was transformed 
 from its foundation, and which we are wont to designate 
 as the beginning of the modern time. We may merely 
 refer to the founding of Universities in the West, to the 
 patronage of the humanistic movement by the house of 
 the Medicis, to the struggle of the awakened reason against 
 the pretensions of the ecclesiastical authority, and to the 
 art of printing as the common literary vehicle of these 
 tendencies. The fire which kindled the new culture also 
 
 •* [Durantis died in 1296. His Speculum juris (in Four Books) was 
 written some time after 1271. Walter considers that Friedlander and 
 others overestimate the importance of the Speculum in relation to Juristic 
 Encycloppedia. Savigny deals with the work of the French Bishop with 
 his characteristic judgment and accuracy, in his ' History of the Roman 
 Law in the Middle Ages ' (Koraisches Recht im Mittelalter), v § 171-175 
 -Tk.] 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 241 
 
 shed its warmtli into the sphere of Jurisprudence, and 
 men forthwith felt the emptiness of the Scholastic method, 
 the insufficiency of its one-sided play with words, and its 
 dialectical trivialities ; and they began to long for the 
 solid knowledge that is only to be attained by philosophical 
 and historical inquiry. The philosophy of the time, how- 
 ever, was at once too dependent and too feeble in creative 
 power to take up this task of itself ; and so it went for 
 counsel to Aristotle, and, in the struggle against the 
 authoritative faith and scholasticism, it lost itself in an 
 ineffective formalism and unfruitful abstractions. Thus it 
 continued in great part to subserve the theological dogma- 
 tism, and it was unable to overcome the existing oppositions. 
 Jurisprudence, in Uke manner, purified and reformed, 
 laboured towards an independence which it could not at- 
 tain, because, as standing in the service of practice, it could 
 not break the chains of authority and custom, nor separate 
 itself, either in the mode of its activity or its objects, from 
 those of the preceding age. Its aim was not the spiritual- 
 ized system of Eight as a whole, which is only to be won 
 by the aid of a profounder study, but a mere Communis 
 opinio relative to the future as well as the past, and 
 supported by a mass of citations and authorities. In 
 other words, it aimed at determining an approximately 
 correct Eule for the deciding of legal disputes as they 
 might arise. Hence the wearisome uniformity of the 
 juristic Encyclopaedias that belong to the latter half of the 
 Fifteenth Century, and partly also to those of the Sixteenth 
 Century. Void of creative individuality, they sought, by 
 external Aristotelian formalism, to conceal the internal 
 poverty of their contents, and abused Dialectic by carry- 
 ing it to excess. Thus fluctuating between what was 
 ancient and modern, they did not even bring order into 
 
242 SYSTEM OF JUEISPEUDENCE. 
 
 what they regarded as the final goal of their activity — 
 their exposition of the principal contents of the received 
 system of Law. These Encyclopaedias are void of all 
 inner unity, and are hut combinations of rules regarding 
 the prudential relations of life for the young student. 
 Their aim was to present what was practically useful ; 
 and hence, notwithstanding their philosophical ostentation, 
 they warn the jurist against what was supposed to be an 
 unfruitful occupation with all that lies outside the special 
 circle of Jurisprudence. 
 
 3. Probably the first product of the modem movement 
 was one of the first books printed before 1500, bearing 
 the title Viatorium utriusque juris, written by Professor 
 John Berbery.^ About the same time, Baptista de Gaza- 
 lupis s. Cujacalupis, Eegent of the University of Jena, 
 wrote his Tradatus de modo studendi in utroque jure, an 
 Encyclopaedia which is distinguished from its predecessor 
 mainly by having a short bibliography.^ Two other 
 writings by the same author, of a similar kind, De metJwdo 
 juris studendi, have been lost.^ Hand in hand with these 
 productions, we have an anonymous Introductorium in 
 utriusque juris libros (BasU. 1513), and Mathseus' De 
 modo studendi in utroque jure (Paduae 1485), as well as 
 Mopha's De methodo ae ratione studendi (Lugd. 1544). It 
 would be equally uninteresting and unprofitable to take 
 the trouble to make the succeeding series of works pass in 
 detailed review. With an occasional difference in their 
 
 ^ [The Viatorium is called by Friedlauder an Incunabvlum, tte technical 
 term applied to the palaeotypes, or eai-liest printed books, mostly prior to 
 1500.— Te.] 
 
 " The Tractatus was printed by itself at Basel in 1500, then in the 
 Vocahularium Juris (Paris 1578), in Sebastiani Brantii Expositiories 
 (Lugd. 1543), and ia subsequent forms. 
 
 ' Cf. PauciroUo, De Claris leg. interpret, lib. ii. cap. 40. 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 243 
 
 mode of representation and in the hints and counsels they 
 give to the young jurists, they may be regarded as repre- 
 senting, in their own sphere, the opposition between 
 realism and humanism, that was carried at the time to an 
 extreme. They take delight in dialectical gladiatorship 
 and in a confusing mass of quotations, or in distinctions 
 and definitions relating to practical Eight and criticisms 
 of authors. The leading titles of these works were : 
 Methodus ; Ratio docendi discendique juris; Juris ars et 
 scientia ; Prolegomena juris ; Epitome tyrocinii juris ; 
 Exercitatio juris ; Parcenesis de studio legali, etc.^ 
 
 Were we to sum up the efforts of the Sixteenth Cen- 
 tury in one word, we might say that they were only 
 negative. In the sphere of philosophy, after the chains 
 of authority had been broken, the spirit of the age put 
 forth its power in hostile discursive attacks upon the old 
 Scholasticism. It tried one thing at one time, and 
 another at another ; attached itself now to a certain 
 great name and again to a different one ; but failed from 
 the very distraction of its efforts to attain the strength 
 
 ' The best of these works, such as those of Duarenus, Eguinarius, 
 Corasius, Hegendorph, Beck, Massa, and others, are to be found, partly 
 accompanied with critical annotations, in the following Bibliographies : — 
 Wolfgang Freymon, Elenchus omnium Auctorum qui in Jure claruerunt 
 (1579), Indice 2, cap. 6. — Lagus, Methodica utr. jur. traditio (1566). — 
 Winckel, Opusctda varia de ratione docendi et discendi jura (Argentorati 
 1554). — Westphalen, £>e origine et medela corruptee Jurisprud. accedit 
 BibliotJieca conciliorum ah Anno 1555 usque ad A. 1726 (Eost. et Lips. 
 1727). — The most important publication of this kind is the rare work of 
 Reusner, the Cynosura Juris (Spirse 1588). It contains about Twenty 
 Encyclopsedias of the Sixteenth Century. Its complete title runs thus : 
 ' XiifayuyU s. Gynosura Juris, quce est farrago sdectissimorum libellorum 
 isagogicorum de juris arte omnique ratione docendce discendceque Juris- 
 prudentice, a summis ac prcestantissimis scecidinostri IGtis conscriptorum.' 
 The works contained in this collection are also to be found in Buder's 
 Bibliotheca juris selecta (Jena 1756). 
 
244 SYSTEM OF JUKISPEUDENCE. 
 
 of manly maturity and solidity. Jurisprudence shared 
 in the same fate as philosophy. She would fain have 
 torn herself from the grasp of the Glossators, in whom 
 alone salvation was formerly found, and yet was incap- 
 able of standing upon her own feet. But by carrying 
 out logically the resolution to receive nothing on trust or 
 faith, she awakened the sense for classical inquiry, swept 
 away much rubbish, and worked vigorously in union with 
 philosophy in the way of preparing for the work of the 
 Seventeenth Century. This age was to win the glory of 
 resolving the problem how to connect what was already 
 known and elaborated as fact, into permanence and inner 
 unity. On this path, when it had once been opened, 
 there met representatives of the most important Euro- 
 pean nations. England was represented in Lord Bacon, 
 France in Descartes, the Netherlands in Spinoza and 
 Grotius, and Germany in Thomasius and his associates. 
 It is easy to understand that a movement connected with 
 such names worked advantageously for the substantial 
 development of Jurisprudence, and that it did not fail 
 to further the advance of juristic Encyclopsedia. Hugo 
 Bonellus gave the first proof that Eoman Law could be 
 taught in such a way that its formal cultivation could be 
 subordinated to the free individuality of its expounder. 
 Cujacius, stimulated by the labours of his predecessors, 
 insisted upon a historical and classical study and exposi- 
 tion of Eight in his Encyclopaedia, entitled De Ratione 
 docendi Juris (Argentorati 1585), to which he prefixed 
 the striking motto, ' Multum crede mihi, refert, a fonte 
 bibatur, quae fluit an pigro, quae latet unde lacu.' But 
 while Cujacius renovated the study of Law by giving 
 regard almost only to practice, Lord Bacon, in his master- 
 work already mentioned, had a wider circle of vision. 
 
HISTOEY OF JUKISTIO ENCYCLOPEDIA. 245 
 
 In the Third Chapter of the Eighth Book of his De 
 Augmentis Scientiarum, he brought it to the Conscious- 
 ness of the jurists ' qui tanquam e vinculis sermo- 
 cinantur,' that as the reform of the Sciences generally 
 could only proceed from Philosophy, so was it with 
 Jurisprudence, and that the previous attempts had not 
 been able to effect a fundamental renovation either in 
 the aim or the method of juridical science. Out of the 
 fulness of his wisdom and experience of life, Bacon laid 
 down rules regarding the Science of Law and its rela- 
 tion to the life of the people. His writings were the 
 spiritual reflex of their age. The time itself was super- 
 abundantly rich in events which were to drive the Science 
 of Law out of the narrow circle of the Juris utriusque, 
 in which it had hitherto been confined, into the domain 
 of the moving life of the Nations; and thus it had 
 assigned to it in great measure the compass and the 
 sphere which it still occupies at the present day. 
 
 4. The lesser attempts that had been already made in the 
 sphere of Public Eight, were now followed by a series of 
 fundamental investigations applied to all the questions in 
 that department of the Science, evoked as they were by 
 the penal ordinances of Charles V., by the religious 
 struggles of the time, and by the revolt of the United 
 Netherlands. • Hugo Geotius is to be regarded as the 
 scientific centre of this historical movement. By his great 
 work, De jure Belli ac Pacts (1625), he gave a common 
 principle of Eight as a bond of union to the national 
 individualities that had been torn asunder, and in his 
 Epistola de Studio politico ad Benjaminem Auberium, 
 Legatum Begiuin, he strove to lay a sure foundation for 
 the study of Eight. The so-called branches of Public 
 Eight, although not yet the subject of special lectures in 
 
246 SYSTEM OF JUEISPEUDENCE. 
 
 the Universities, thus became an object of literary study 
 and an indispensable part of any encyclopsedic exposition 
 of Jurisprudence. No period, indeed, was richer in juristic 
 Encyclopedias than the sixteenth and seventeenth centuries ; 
 and whoever examines carefully the juristic literature of this 
 period, will not find it an exaggeration when we assert that 
 the best minds of the time were almost exclusively devoted 
 to this mode of scientific activity. Nor could they well 
 do otherwise, because the condition of Law itself drove 
 them to it as by an inner necessity, and because they 
 had to make good what had been previously neglected. 
 From the former ages they had received the exist- 
 ing elements of positive Law in motley disorder, 
 and even without external connection ; and therefore 
 the twofold task remained for the Jurists to give 
 at once a new vesture to this tradition, and to bring 
 into proper order the new jural growths of their 
 own age. They almost all agreed that this end could 
 only be attained by means of a strict and logically main- 
 tained effort. Thus arose in the Sixteenth Century the 
 so-called Methodists, whose efforts were directed to intro- 
 ducing the clearest possible order into the tangled web 
 of the material of Law, both with reference to Juris- 
 prudence as a whole and to its several parts. The 
 leaders of this movement, in whose footsteps came a rich 
 train of followers, were the French Jurists J. Corasius, 
 Senator of Tonlonse,^ GregoriusTholosanus,^a.ndthe Friesian, 
 
 ■' Corasii lureconsulti, De Juris Arte Libellus. Colon. 1563. [Coras 
 
 was born c. 1512. The Libellus only deals with the Roman Law 
 
 Te.] 
 
 ^ Petri Gregorii Tolosani, Syntagma Juris Universi atque Legum pene 
 omnium gentium et rerum puNicarum prtecipuarum, in tres paries diges- 
 turn in quo divini et humani juris totius, naturali ac nova methodo per 
 gradus, ordineque materia universalium et singularium simulque judicia 
 
HISTOEY OF JUKISTIO ENCYCLOPEDIA. 247 
 
 Joachim Hop-perus (1576).^ Besides these, M. Wesen- 
 beck, in his treatises, Be juris arte et scientia comparanda 
 prolegomena, and the JEpistola de studio juris recte etfeliciter 
 instituendo, and many others, followed on the same path.^ 
 Their writings, aiming equally at subserving the interests 
 of the school and of life, however much good they may 
 have done, did not exhaust their task, because they re- 
 garded the inner reciprocal relation of the several 
 branches of the science as a secondary consideration, and 
 they often sacrificed it to an arbitrary external arrange- 
 ment. Thus these productions became either meagre 
 excerpts, poor in substance, or thick voluminous compila- 
 tions. The heginning of the Seventeenth Century offers us 
 nothing better than this. An itching after original 
 systems brought with it a flood of Encyclopaedias of 
 which the most important are enumerated in Buder's 
 Bibliography.^ Most of them, however, had at least the 
 merit of having striven for simplicity as against what 
 had become antiquated and unusable ; but they turned 
 their own weapons against themselves, for while making 
 the form of the science the subject of chief importance, 
 they failed to recognise that it is only its inner unity 
 that can produce the greatest possible perfection in its 
 form. Accordingly, while they very frequently' put the 
 
 ezplicantur. (Lugduni 1582, fol. Fifth and last ed. Frankfurt 1611.) 
 [Walter says that the great collective system of Gregory of Toulouse is 
 more scientific than the Speculum of Durantis. — Te.] 
 
 ^ Joachimi Hopperi Phrysii lurisconsulti, De Juris Arte. Libri tres. 
 Lovanni 1555. 
 
 * Their works are found in the Collections of Reussner and Buder, v.s. 
 Note. [Walter also refers specially to the work of Althusen as important. 
 Johan. Althusii, IC. Dieaeologiae Libri tres, totum et universum jus, quo 
 utimur, methodice complectentes. Francof. 1618. — Te.] 
 
 2 BuderiDe ratwne et methodo gtudiorum juris illustrium et prcestantis- 
 simorum ICtorum selecta opuscula. Jense 1724. 
 
248 SYSTEM OF JUEISPEUDENCE. 
 
 individual details together in a fragmentary way and into 
 haphazard divisions, their whole structure became a loose, 
 unconnected aggregate of particulars, which only confused 
 the beginner. 
 
 5. The writers of the second half of the Seventeenth Century 
 learned from the errors of their predecessors, and in these 
 fifty years we find encyclopaedic attempts of every kind 
 gathered together as in a focus. It is a pleasant task to 
 examine the succession of them, because we find, among 
 their authors, thinkers who felt the emptiness of the 
 previous modes of exposition, and who actively diffused 
 light and stimulus on all sides. These men are the mile- 
 stones in the history of Jurisprudence as a science, and 
 they are to be reckoned through a whole generation. 
 Among them stand conspicuous the triumvirate, Puten- 
 DOKi',-' Leibnitz,^ and Thomasius.^ Inheriting from 
 Descartes and Spinoza the fundamental principles of an 
 independent philosophy, and important historical material 
 from Bacon and Grotius,* they opened the way to a 
 ratioTial treatment of juristic Encyclopaedia. Pufendorf, 
 however, in this relation, is not entirely undeserving of 
 the expression of Leibnitz, ' parum juris-consultus ! ' from 
 
 ' Elementa Jurisprudentiffi universalis, 1660. 
 
 * Noya Methodus discendae docendeeque Jurisprudentise, Ex artis 
 didacticse principiis. (Frankf. 1668. Also witli a preface by Wolf, 
 Leipz. 1748.) 
 
 ' Cautelae circa piaecognita Jurisprudentise, in usum auditorii Thoma- 
 siani (Halae 1710). Also Ms ' Summary Sketch (^m«wM)/, etc.) of the 
 fundamental doctrines which it is necessary for a Student of Law to know 
 and to learn at the Universities ' (Halae 1699). The first-mentioned work 
 also appeared in German, under the title, Hochstnothige Cautehn die 
 ein Stndiosus Juris zu b&obachten hat. Halle 1713. 
 
 ■* Pufendorf, in his preface, says : Sed et illud hie monendum fuit, 
 multum nos desumsi.sse ex mirando illo opere de Jure Belli ac Pacis, 
 viri incomparabilis Hucjonis Orotii. 
 
HISTORY OF JUEISTIC ENCYCLOPEDIA. 249 
 
 the way in which he puts together abstract jural concep- 
 tions, which have a certain one-sided character, and 
 which are employed to conceal the internal want of 
 unity. He tries to blind us by the semblance of a 
 merely external method, and he pays us off with the 
 quintessence of his philosophy in place of a scientific 
 permeation of the material of Law ; and on the whole 
 he thus produces only a very defective Encyclopaedia. 
 Thomasius, imbued with living faith in the power of 
 thought, wrote his Summary Sketch, which was the first 
 academic writing published in the German language, and 
 pressed the whole wealth of history and of life in his 
 own way to his heart. Apart from the more incidental 
 merit that he was the first, and, so far as we know, the 
 only one who has ever lectured for four successive ses- 
 sions on the subject of Universal Encyclopaedia (1699),^ 
 he had the power of surveying the great sphere of all 
 knowledge and life from a standpoint of his own that 
 raised him above the errors and prejudices of his time ; 
 and he showed that he possessed an abundance of posi- 
 tive and especially of juristic knowledge. Laying his 
 foundation on the principle ' that philosophy ought 
 properly to be a guide to the true wisdom and the 
 common instrument of the three higher academic Facul- 
 ties,' he reared a structure which we still contemplate 
 with astonishment to-day. He comprehended the multi- 
 plicity of his experiences, both of knowledge and life, in 
 consciousness, beheld the peace of the spiritual totality ■ of 
 existence in its unity, and combined with the inexor- 
 able criticism which he directed against all antiquated 
 
 ' Falok mentions that Martini delivered a series of Lectures on this 
 subject — Collegium isagogicum in universam Jurisprudentiam — at Kiel 
 in 1685. 
 
250 SYSTEM OF JUKISPEUDENCE. 
 
 pedantry, a conciliatory gentleness of sentiment towards 
 the students of science. He arranged the scattered 
 material of his subject under general laws, but it is 
 the great and essential defect of his encyclopsedic method 
 that he only arranged it by reducing what was given as 
 fact, under his own ready-made categories ; and he was 
 therefore reflective and not speculative. 
 
 The comprehensive genius of Leibnitz, to whom the 
 first juristic Eucycloptedia has been erroneously ascribed, 
 strove mainly to remove those defects of Method of which 
 Thomasius had asserted ' that they only led the students 
 of Law astray.' Animated with an equal love for all 
 scientific efforts, and distinguished in mathematics as the 
 'Newton of the Germans,' Leibnitz, when but a youth, 
 entered on a campaign against the previous method of 
 teaching and learning Jurisprudence. The confusions of 
 the time in the sphere of Eight and Law, awoke in him 
 his permanent favourite thought of a scientific revision 
 of the Corpus juris Romani} and the production of a 
 universal Law-book for Germany. Soon coming to see 
 that both of these ideas would have to remain but pious 
 wishes, he endeavoured to contribute in his Nova Methodus^ 
 what he could give of his own to the renovation of the 
 study of Law. As it had been pre-eminently the Civil 
 Law, for the acquisition of which the various methods had 
 been hitherto established,^ it was especially against their 
 stiffness and inflexibility that he took the field. But 
 while he advocated a didactic Method, he only altered the 
 
 '■ Corporis Juris reooneiunandi Eatio, 1669, 1671. 
 
 ^ Nova methodus discendse docendaeque Jurisprudentise, 1767. 
 
 ' The best known of these was the Samistic Method, derived from Eamus 
 the French Dialectician of the beginning of the sixteenth century. It was 
 also called the Methodus Cattsamm and the Methodus dichotomica s. 
 
HISTORY OF JURISTIC ENGYCLOPvEDIA. 251 
 
 name, and not the thing itself, with the difference that 
 he attempted in the whole science of Jurisprudence what 
 those whom he attacked had only proposed to do in its 
 several branches. While Thomasius only arranged and 
 sifted the material then presented, and thus made it more 
 intelligible for the student, Leibnitz laboured to compress 
 the historically given material into the definitions and 
 precepts of his own philosophy, and he thus fell into a 
 formalism which, so far from bringing simplicity and 
 clearness into the mass of the things with which he was 
 dealing, only increased the confusion/ The end which 
 he proposed to himself was great, being ' delineare ICtum ^ 
 perf ectum et vias designare ad perfeetionem grassandi ' ; 
 but however great ' it was, and notwithstanding his 
 originality of connection and the independence of his 
 combinations, he could not obtain for his age the intellec- 
 tual mastery over the material of Eight and Law which 
 it required. He did not even reach what he originally 
 intended as a ' Compendium discendorum,' because he did 
 not construe the totality of Eight from within according 
 to one principle, but proceeded from without, and mostly 
 derived his principles of division from the material itself. 
 Hence even his Division of Jurisprudence was borrowed 
 from the theologians. It thus fell into didadica, Mstorica, 
 exegetica, et polemica ; and according to his own assertion, 
 ' ex his didactica et polemica proprie sunt partes juris- 
 prudentiae, historica vero et exegetica sunt requisita 
 tantum.' 
 
 tabellaris. Its leading points were expressed in the following mnemonic 
 lines : — 
 
 Praemitto, scindo, sumo casnmque figure, 
 Perlego, do causas, connote et objicio. 
 1 As in the table appended to his work. 
 * [' ICtum ' - luris-Consultum.— Te.] 
 
252 SYSTEM OF JUEISPEUDENCE. 
 
 How came it then that these disciples of the School 
 of Natural Law, specially called as they were to philo- 
 sophy, produced no System of Jurisprudence arising and 
 flowing from a single principle ? This fact is explained 
 by the nature of their tendency in Jurisprudence. In 
 their time the feeling of dissatisfaction with the existing 
 state of the science of Law, was vividly and practically 
 felt. Then they appeared with the certainty and boldness 
 of a science that had confidence in itself ; they sought 
 to liberate the German nation from the fetters of the 
 historical material, and they thus took a negative attitude 
 towards it by excluding what the age condemned, separat- 
 ing out particular masses of the whole, and combining 
 from the various parts of positive Eight and Law what- 
 ever naturally cohered. At all events, they thus laid 
 the foundation of an organic articulation of the various 
 parts of the science, and a systematic delimitation of its 
 branches. But because the essential characteristic of the 
 whole School was intellectual reflection, it destroyed by 
 its empty abstractions the living connection of the ele- 
 ments of the jural system, and articulated the branches of 
 the science merely by reference to their contents or to 
 the sources of Law, and not according to a speculative 
 principle. 
 
 Animated by the influence of this School, encyclopaedic 
 attempts were made on all sides, some of them contem- 
 poraneously, others of them later, and with more or less 
 success, according as they adopted the advantages or the 
 errors of the School. Most of these Encyclopaedias will be 
 found mentioned in the bibliographies already referred to, 
 especially in Brunquell's Opuscula, and in the Bihliotlieca 
 juridica of Lipenius — and a short historical and literary 
 outline is generally prefixed to the quotation of them. 
 
HISTOEY OF JUEISTIC ENCYCLOPEDIA. 253 
 
 The best of them all — as is also held in the judgment 
 expressed in the academic imprimatur prefixed to it — is 
 that of Braun (Professor at Salzburg), entitled Jurispru- 
 dentia in genere ac specie nova et scientifica methodo publicata 
 (Salisburgi 1687). We may here pass over the less 
 important works of the kind, and merely allude to Lynker,^ 
 Huber,^ Van Eck,' Balduin,* Seebach,^ Carpzov,* Kestner,^ 
 and Hunnius, who first chose the designation 'Ency- 
 clopaedia.' * 
 
 The writers of the Eighteenth Century thus found the 
 paths opened, upon which they could advance, the various 
 branches of Jurisprudence as a science being exhibited 
 in their mutual relations and examined in their principal 
 contents. The previous attempts to introduce a strict 
 method made it easier for them to determine the relations 
 of their science, and to strive with concentrated energy 
 towards the goal set before it. This goal was the unity 
 of the departments of Jurisprudence and the exact demar- 
 cation of the scientific domain of Eight. The aspiration 
 to discover a common centre for the whole, called forth 
 in wonderfully rapid succession a multitude of Encyclo- 
 
 ^ Introductio in selectam Eruditiouem. — Ratio dooendse discenda?.que 
 Jurispr. Rom. Germ. (Jenae 1686). Instructorium Forense, 1690, 1698. 
 
 ^ Diatribe de ratione docendi et disoendi Juris. Leovard 1677. Also 
 Ed. by Zach. Huber. Franc. 1684, 1696. 
 
 ' Oratio de ratione studii Juris recte instituendi. Traj. 1693. 
 
 * De historia universa ejusque cum Jurispr. conjunct. 1693, 1698. 
 
 * Introd. in Juris et Politices atrium per viam logices. Viteb. 1697. 
 
 * Recta MethoduS de studio Juris recte et feliciter instituendo. Dresdse 
 1675. 
 
 ' Prudentia studii Juris. Rintel. 1699. Introductio ulterior ad studium 
 Juris. Francof. 1704. Compendium Juris universi, seu Jurispr. posit, 
 seculo accommodata. Kintel. 1707. 
 
 8 Ulr. Hunnii Encyclopaedia Juris universi. Colon. 1683. [Hunnius 
 died in 1636. His Ehcyclopcedia was published after his death. — Tb.] 
 
254 SYSTEM OF JUKISPKUDEKCE. 
 
 paedias, which — to say nothing of their unclassical Latin 
 and their inelegant German — regarded method as an 
 empty frame into which anything could be put at wUL 
 Hence they did not produce anything like a single con- 
 nected organism, any more than did the authors of the 
 numerous Universal Encyclopaedias of the time,^ and 
 they only sought to supersede their predecessors, whose 
 slavish imitators they were, by piquant and often ludi- 
 crous titles.^ Thus from the want of one common bond 
 wound round all the branches of the science, they were 
 compelled, in their embarrassment, to refer essential parts 
 of the whole to a special Appendix designated ' adminicula 
 juris.' This unsatisfactory and unsuccessful attempt to 
 methodize,' and to lay down rational precepts for the 
 proper conduct of study,* was accompanied with the effort, 
 
 1 E. J. Kemmerich's Neu croffnUe, Alcademie der Wissenschaften. 
 Leipz. 1711-14. — Lasius' Uarmonische SchlusslcMe der Gdehrsamkeit 
 ub&rliaupt. Soran 1727. — Kellenberg's Verniin/tiger u. erfahrener ahad, 
 Wegweiser. Leipz. 1726. 
 
 ^ Bierlinfr, De eruditicme polUica oder wie man cavalierement studieren 
 soil. Eintel. 1708. — Hertel, Pyxis nautica navigaturientis per im- 
 memurn j\iris pelagu7n. Jense 1711. Laterna Magica. Franeof. et Lips. 
 1743. — Marbaeh, Introitus ad jurisprudentiam apertus. Jens 1717. 
 — Stryk, Charte lusorise juridicse sive compendiosa institutio leges oiviles 
 per ludum et jocum addiscendi. Halse 1709. (Juristic playing cards, etc. , 
 in 36 sheets !) 
 
 3 Ickstadt, Meditationes prcdiminares de studio Juris ordine atque 
 methodo scientifica instituendo. Wiirzb. 1731, and in liis Opuscula, I. 1. 
 
 * As in the anonymous Eluge Conduite eines kiinftigen, Gelehrten, 
 insbesondere Rechtsgelehrten. Frankf. Leipz. 1713. — Herinc Nothw. 
 Vorbericht u. Unterweisung vom Studio Juridico. Stettin 1720. (Con- 
 tains as an Appendix Leibnitz's letter to Eestner, u.s.) Kallenherg 
 
 Akad. "Wegweiser zur wahren Weisheit u. Elugheit wie auch griindl. 
 Eechtsgelehrsamkeit. Leipz. 1724.— Kurze Abhandlung von der Methode 
 die Eechte zu erlernen, von S. Jena 1648. — Hoffmann, Nbthige u. 
 
 niitzliche Grundsatze der Eechtsgelehrsamkeit. Frank. Leipz. 1743. 
 
 Sohmauss, Entwurf eines Gollegii juris prfeparatorii. Gottingen 1737. 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 255 
 
 inaugurated by Leibnitz, to mould the Corpus juris 
 methodically into another form, and it was even more 
 fruitless of result;^ or again, it ran parallel with the 
 desire to comprise the whole of the valid rights and laws 
 in one book.^ This latter tendency was carried out to the 
 utmost by Nettelblatt, a follower of Christian Wolf, who 
 himself wrote a treatise that is to be found in Cramer's 
 Opuscula de necessitate Methodi Scientificm. Nettelblatt 
 plays the same part in Jurisprudence that his master did 
 in Philosophy, and the controversy to which he gave rise 
 regarding the method of Jurisprudence, is a faithful 
 reflection of the conflicts that were waged around the 
 Leibnitzio-Wolfian philosophy.^ As Wolf sought to give 
 a mathematico-scientific form to Philosophy, Nettelblatt 
 sought to give a similar form to Jurisprudence ; and it 
 may be said that almost his whole life and efforts were 
 spent in the systematization and the encyclopsedic repre- 
 sentation of Jurisprudence. By his skilful defence of the 
 demonstrative Method, he threw down the glove in 
 challenge to the representatives of the doctrinal Methods 
 
 ^ E.g. Berger, Corpus juris reooncinnatum. Frankf. et Lips. 1767, 
 1768. 
 
 '' Titius, Juris Eomano-Germani Lib. xii. Lips. 1709, 1724. 
 
 ' Nettelblatt's works in tliis department are as follow : — Systema 
 elementare universse Jurisprudentiae positivse communis imperii Romano- 
 Germanici usui fori accommodatum, 1729, 1762. — Prjecognita eruditionis 
 generalia, 1755. — PrEecognita jurisprud. posit, gen., 1759. — lutrod. in. 
 Jurisp. pos. Germ, commun., 1761. — Nova Introd. etc., 1772. — Systema- 
 elementare doctrinarum Jurisprudentiae pos. Germ. comm. 1781. — 
 Unvorgreifliche Gedanken von dem heutig. Zustande d. biirgerl. u. 
 naturl. Rechtsg. in Deutschland, etc., 1749.— Politische Vorschlage zur 
 Verbesserung der jur. Vorlesungen auf hohen Schulen, 1750. — Von dem 
 ganzen Umfang der natiirl. etc., Eechtsgel. 1772. Abhandlung von der 
 prakt. Rechtsg. etc., 1764. Besides many scattered writings and reviews 
 and a ' Program ' on the teaching of Law, Halle 1744. 
 
256 SYSTEM OF JUEISPRUDENCE. 
 
 practised before and in his time ; and against the prevail- 
 ing confusion in the jural life of the age, he hurled the 
 words 'jurisprudentise divisio, a concrete sumta, omnis 
 confusionis principium est et ad eos pertinet, qui vel 
 tractatus vel indices scribunt ! ' The Jurisprudence of 
 that age was represented as having gone back, in so far 
 as ' the positive material of legal Eight had been elabo- 
 rated for practical ends into an apparent whole without 
 critical examination and separation, so that what was 
 heterogeneous and incompatible had been conjoined 
 together ; one jurist had handed on the dead mass to 
 another ; and by every hand new errors were added, and 
 even the best of them had not been able to withdraw 
 themselves from the traditional authority of a false 
 method.' This bitter polemic against the prevailing 
 want of thought, and against the teachers and text-books 
 that were regarded as its source, fills many pages of 
 Nettelblatt's writings. In estimating their value we 
 would gladly overlook certain absurdities, such as the 
 Chapter on the Jus antediluvianum, if only we had been 
 indemnified by a really systematic arrangement of the 
 Science as a whole. It is undeniable that they are fitted 
 to give the students an impulse towards clear thinking 
 and the appropriation of universal culture, while they also 
 contain hints for the guidance of the teacher and lesis- 
 lator in aiming at a better state of Law. But with all 
 this, these writings leave us unsatisfied in regard to the 
 solution of their special problem, the way to which was 
 barred by Nettelblatt himself when he accepted the view 
 that ' omnis methodus nonnisi formalia conseruit.' Hence 
 the result of his great endeavours was not a system, but 
 a systematic dissection, and the unity that was aimed at 
 was lost in mere logical formalism. 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 257 
 
 6. Immediately thereafter, there again emerged a multi- 
 tude of Encyclopaedias composed according to the method 
 of Nettelblatt.^ This literature grew to a great extent, 
 accompanied as it was in the first half of this period 
 with dull treatises about the utility of certain Sciences 
 for the Jurist, and with Jeremiads about the decay of 
 juristic Science,^ and the gulf that lay between theory 
 and practice. The writers dabbled in one thing and 
 another, great or small, till at last they were brought 
 again out of this methodizing formalism to the highway 
 of the practical requirements of the time. 
 
 There are again three important names to which this 
 new movement was attached : Senckenberg,^ Moser,* and 
 Putter.^ Trained in the School of practical life, and able 
 cultivators of public Law, these three representative 
 thinkers at once confute and mutually complete each 
 other. While Pufendorf, Thomasius, and Leibnitz en- 
 abled the juristic world to enlarge its circle of vision and 
 carried their age from the narrow round of its own views 
 
 ' Beckmann, Oedanhen vom Beformiren des Jtechts. Halle 1749. — 
 Trier et Sell, Triga Opuscvlorum. Colon. 1760. — Gonne, De invertendo 
 Jura praeiandi ordine. Erlang. 1756. — Madhin, Oedanken . . . 
 besonders in der Sechtsgdehriheit. Halle 1758. — Moyen, Anleitung z. 
 Erlemung der Eechtsgelehrtheii. Giessen 1752. — Lobathan, Ahhandlung, 
 etc. Cbthen 1774, etc. etc. 
 
 2 A whole series of such may he found in Nettelhlatt's Syst. doctr. prop. 
 Sect. I., II., III. 
 
 ^De ordine CoUegiorum juris theoretioorum et practicorum. Gott. 
 1735.— Methodus Jurisprudentise. Francof. 1756.— Vorlaufige Einleitung 
 zu der ganzen in Deutseliland ublichen Rcchtsgelehrsamkeit, 1762-1784. 
 
 * AUg. Betracht, iiher das Studieren, besonders der Eechte.— Anleitung 
 zu dem Studio Juris. 3rd Ed. Jena 1743. 
 
 ' Entwurf einer juristischen Encyclop. Gbttin. 1757. — Neuer Versuch 
 einerjur. Encycl. u. Methodologie, 1767.— It is often erroneously stated 
 that Stephan Piitter (t 1807) was the first to introduce the use of the term 
 ' Encyclopaedia ; ' but this was due to Hunnins, as mentioned above. 
 
 R 
 
258 msTOEY OF jurisprudence. 
 
 of Law into the centre of a magnificent scientific struggle, 
 this later trio represented a reaction, called forth in an 
 intelligible way by the mistake of the adherents of the 
 School of Natural Law, and it was unmistakably directed 
 against a confusing and unpractical mode of philosophiz- 
 ing. — Senckenberg (t 1768) wrote his treatise, not for the 
 special student of Law, but as he says, for his son, a boy 
 of eleven years, and he thus impressed upon it, both in 
 matter and form, the stamp of a Catechism of Law. 
 Moser's Introduction, again, appears as a rational Adviser, 
 in which he embodies the results of an experience of 
 seventeen years, in vivid incisive language. Piitter, on 
 the other hand, combines with these advantages that 
 of an appropriate arrangement and a lucid exposition, 
 and he has also embodied in a separate division the so- 
 called Methodology, which the other two had variously 
 mixed up, and which received its distinct formation from 
 him. He thus became the father of a method which still 
 prevails in the present day, and it is therefore so far 
 correct to date from him the beginning of juristic Ency- 
 clopsedia in the current sense of the term. 
 
 In what then did the epoch-making characteristic of 
 the Encyclopedias of these three representatives consist ? 
 It lay in the fact that they detached themselves from the 
 watery verbosity of their predecessors, and gave up the 
 attempt to comprehend the living connection of Eight 
 by arbitrary combinations. Without assuming a hostile 
 attitude towards the preceding philosophical efforts, as 
 might have been expected, they advanced with the 
 reasonable demand that the true position and value of 
 Jurisprudence should not be handicapped by a straining 
 after barren ideals of the Science. They had a right to 
 repudiate the results of the philosophizing spirit when 
 
HISTOEY OF JUKISTIC ENCYCLOPEDIA. 259 
 
 they were found to be in contradiction with the fresh life 
 of the time. Their efforts were therefore directed to further 
 the comprehension of the existing Eight and Law, and 
 especially to bring its national elements into the con- 
 sciousness of the people, as well as to contribute to the 
 reanimation of neglected branches of the Science. This 
 mode of progressive formation, demanded a knowledge 
 of the concrete elements of the time rather than an 
 organism of developed conceptions. While they renounced 
 the attempt to unfold such an organism, they wished in 
 no way to detract from the power of philosophy ; yet, 
 because they knew that they could not advance with an 
 articulated and completed system beyond the achievements 
 of their predecessors, they united and concentrated their 
 power in a universal outline of the doctrine and life of 
 Law ; and this end they completely attained without 
 engaging in a mere conflict about principles. Their 
 object was to comprehend the particulars of legal Science 
 under general points of view. In this they succeeded, — 
 and it was all they achieved.^ 
 
 The History of juristic Encyclopaedia till near the end 
 of the Eighteenth Century, thus presents us with a 
 series of attempts that range between the extreme of 
 a purely philosophical method and merely empirical 
 expositions of the subject. All these various modes of 
 representation have their historical justification, some 
 of them in pressing towards a central speculative 
 principle, and others by laying immediate hold of what 
 
 ' Senckenberg thus describes this method (Cap. VIII. § id, 50) : 
 ' Every man ought properly to be a jurist. Hence it behoves to make 
 jurisprudence not difficult but easy, that even citizens and peasants in 
 any case might know it, and every one be able to judge of it according to 
 his circumstances. ' 
 
260 SYSTEM OF JUEISPEUDENCE. 
 
 was required by the practical want of the time. Neither 
 of the methods could, of course, suppress the other, and it 
 remained for the following age to combine them in scien- 
 tific unity. The transition to this subsequent mediation 
 was formed by a series of writings, some of which are 
 very noteworthy,^ and the higher principle by which 
 it was to be effected received its special expression from 
 Kant^ and his successors. 
 
 7. Kant is the centre of the spiritual movement which 
 took its rise towards the end of the last century, around 
 which all the positive and philosophic efforts succeeding 
 him have turned. He aimed at bringing life into 
 harmony with Science, and both with Eeason. It thus 
 became necessary for him to take up a critical standpoint 
 in consequence of so much that was untenable having 
 been derived from the immediately preceding period ; and 
 in the twofold relation to life and science his work was at 
 once to sift and to purify. The predecessors of Kant, the 
 so-called Empirical Philosophers, had made the attempt 
 to bring the contents of life and Scientific Knowledge 
 into the form of general ideas and propositions, but these 
 
 ' Boels, Plan einer neuen Art, die Rechte lirauclibar zu lehren oder die 
 jur. "Werkstube. Fraiikf. Leipz. 1778. — Winkler, Eichtiger Zeiger der 
 Hauptscliuldigkeit eines Lehrers der Eechte. Graz. 1768. — Matthai, 
 Betrachtungen iiber das Studium der Rechtsg. Breslau 1772. — Eybd, 
 Adumbratio Jurispr. Vienn. 1773. — Scharf, Unterrioht, etc. Jena 1734. — 
 Seip, Vorschlage. Gott. 1752. — Schwarz, Erinnerungeu.- Liineb. 1778. 
 — Meister, Ueber das jur. Studium. Berlin 1780.— Tevenar, Versuch 
 iiber die Eeohtsgel. Leipz. 1777. — Brunquell, Isagoge in univ. jurispr. 
 Halle 1774.— Schott, Entwurf einer jur. Encyclopadie u. Methodologie. 
 Leipz. 1771 (6tli Ed. by Kees, 1794). The best and most widely used 
 text-book of its time. 
 
 2 [Kant's position and the relative literature will be found indicated in 
 the translator's recent Edition of Kant's Philosophy of Law. T. & T. 
 Clark, 1887.— Tr.] 
 
HISTOKY OF JUEISTIO ENCYCLOPEDIA. 261 
 
 were only one-sided reflex conceptions abstracted from 
 the perception of particular facts, and they wanted the 
 characteristics of Universality and Necessity, and conse- 
 quently of Certainty. Kant passes beyond this stage of 
 knowledge with the assertion that the criterion for the 
 knowledge of the world lies in ourselves. This knowledge 
 must be determined by us, and not conversely. In this 
 way he set the principle of the independence of Eeason 
 upon the throne, and recognised it to be the function of 
 Reason to mediate between Knowing and Being. His 
 endeavour to banish contingency and uncertainty was, 
 however, nullified by himself, when he asserted on the 
 one hand that Eeason is not able to solve the contra- 
 dictions of the world, and again that it is unable to 
 comprehend anything which transcends or lies beyond 
 the actually present world. Hence, with Kant, Eeason is 
 merely a faculty of Eeflection in the higher sense ; it is a 
 practical Understanding which has merely to apply its own 
 laws to the facts of experience. 
 
 The result of the philosophy of Kant, may accordingly 
 be expressed as the application of the principle of 'formal 
 unity to the simplification and systematizing of experiences.' 
 The Kantian system, therefore, exercised less influence 
 upon the treatment of the Sciences and upon Encyclo- 
 paedia, in so far as it left the method of the common 
 knowledge entirely uncontested. On the other hand, its 
 epoch - making importance arose from ' the independence 
 of the self - apprehending thought as the principle of 
 Freedom which, although it was not capable of developing 
 anything out of itself, yet absolutely refused to admit the 
 validity of anything which has the character of ex- 
 ternality.' This Principle was the germ of that fruitful 
 revolution in knowledge and life which found its theo- 
 
262 1 SYSTEM OF JUEISPEUDENCE. 
 
 retical expression in the blossoming classical literature of 
 Germany of the time, and whose practical result is to be 
 regarded as embodied in the subsequent reform of the 
 political life. Thus did Kant set everything into most 
 animated motion in the camps of all the divisions of the 
 intellectual army, and they all put themselves under 
 his banner. His rationalism contained not only the germ 
 of a new cultivation of the branches of Jurisprudence, 
 for which philosophy is an indispensable basis, but even 
 in the purely positive departments of the Science, new 
 creations were reared upon the foundation already 
 laid. The positive material was critically sifted, and 
 it was recognised as the function of Science to reconstruct 
 the scattered accumulation of Private Eight into an 
 organic whole. But, on the other side, the attempt was 
 made to transplant the Kantian ideas into the subject ; 
 and in consequence, and under the favouring influence of 
 the time, two methods became predominant in Juris- 
 prudence, the one of which may be designated as the 
 philosopMco -practical, and the other as the pMlologico- 
 historical. 
 
 Notwithstanding their inner difference, these two ten- 
 dencies had in common that mode of treating the subject 
 which presented an orderly exposition of the Principles 
 of Eight from universal points of view, and which was 
 opposed to the earlier inflexible arrangement of the text- 
 books according to the so-called legal order. Thus the 
 scientific reconstruction of Jurisprudence, which Leibnitz 
 had long before attempted, became a fulfilled truth. Yet 
 the Kantian philosophy advanced to nothing higher 
 than a certain formalism within which it was necessary 
 for Science to move. This character was also communi- 
 cated to the juristic Encycloptedias of the time, which, 
 
HISTOBY OF JURISTIC ENCYCLOPAEDIA. 263 
 
 far from attaining to a genetic production of the science, 
 constrained the newly-gained results into the Kantian 
 forms of thought. In the most of them there is a cer- 
 tain run taken through the principles of the Kantian 
 Philosophy, and this is, in fact, their only point of pre- 
 eminence over the EncyclopEedias of Putter's School. In 
 this relation Kant is not yet antiquated at present.^ 
 This formalism, which can never produce a work that 
 flows in the current of one stream, shows itself most 
 clearly in the traditional division of the subject into 
 Encyclopaedia and Methodology, from which very few 
 have yet detached themselves. From that time is also 
 dated the absurd division into external and internal 
 Encyclopaedia, which unfortunately still maintains its 
 place. There is erudition enough found in the works 
 
 ' The most noteworthy among the works of this school are the follow- 
 ing : — Gilderaeister, Juristische Encyclopadie n. Methodologie. Duisberg 
 1783. — Reitemeier, Encyc. u. Geschichte der Kechte in Deutschland. 
 Gottin 1785. — C. G. Richter, Oratio de intereuntis jurispr. humanioris 
 causis recitata. Lips. 1786. — Terlinden, Versuch einer Vorbereitung, etc. 
 Miinster 1787. — Tafinger, Encyo. u. Geschichte der Rechte in Deutsch- 
 land. Erlangen 1789. Tub. 1800. — Versuch einer jur. Methodologie. 
 Tubing. 1796. —J. C. J. Meister, Ueber das jur. Stadium. Berlin 1780. 
 Vorerkenntnisse u. Institut des positiv. Privatr. 1810. — Snetlage, De 
 Jur. Univer. ratione. Halse 1788. Program de methodo jur. docendi.— 
 Schmalz, Encyclop. des gemein. Rechts. Kbnigs. 1790. — Hugo, Lehrbuoh 
 der jurist. Encyclopadie. Berlin 1792. (8th Ed. 1835.)— Dabelow, Ein- 
 leitung in die Deutsch. pos. Rechtsw. Halle 1793. — Crusius, Vorerkennt- 
 nisse fiir Anfanger in der Rechtsgewissenschaft. Hannover 1795. — 
 Eifenhart, Die Eechtswissenschaft nach ihrem Umfange, etc. Helmstadt 
 1795, 1804. — Zacharia, Grundlinien einer Wissenschaft jur. Encyclop. 
 Leipz. 1795.— Hufeland, Pracognita. Jense 1795.— Abriss der Wissen- 
 sohaftskunde u. Methodologie d. Rechtsg. Jena 1798, 1803. Lehrbuch 
 der Geschichte u. Eucycl. aller in D. geltend. pos. R. 1796.— Thteaut, 
 Jurist. Encyclopadie u. Methodologie. Altona 1797. — Kohlsohiitter, 
 Prop. 'E'dc. u. Method, der pos. Rechtsw. Leipz. 1797.— Kurze Anleitung 
 zu einem griindl. Studium der Rechtsg, (Anonymous. ) Liineb. 1 798. 
 
264 SYSTEM OF JUEISPEUDENCE. 
 
 referred to, but no rounding off, no completion, no unity. 
 To these conditions they were prevented attaining mainly 
 by following the division of knowledge into rational and 
 empirical, which proceeded from the very essence of the 
 Kantian philosophy. 
 
 Fichte and Schelling^ aimed at removing this dualism 
 from Philosophy, and they both strove to reduce philo- 
 sophical knowledge to an independent absolute priaciple. 
 This principle was in their view the personality in which 
 thinking and being are identical, and in which the latter 
 is produced from the former. So far as our purpose is 
 concerned, we may put these two philosophers on the 
 same line, although Schelling afterwards but too often 
 changed his system. Both start from the demand that 
 knowing shall be absolutely OTie, because its aim is no- 
 thing else than the logical comprehension of the ' One in 
 All.' Their philosophy has, therefore, had an advan- 
 tageous influence, in that it strove to work the whole 
 practical and scientific life into a living unity, and hence 
 it was joyously greeted on all sides as healing the breach 
 between science and reality that had been produced by 
 the Kantian Criticism. The productive activity of the 
 Ego — which in Fichte is the individual Ego, and in 
 Schelling the absolute or Divine Ego — is the infinite 
 source of all knowing ; and all that is confused and 
 divided in detail, finds in this Ego its unifying centre. 
 Can there be a surer foundation on which to build up a 
 system of the sciences than this ? 
 
 Apart, however, from the fundamental and essential 
 defect in the way in which they assume and establish 
 their philosophical principle, which cannot be closely 
 
 1 [For the works of Fichte and Schelling on the Philosophy of Ri^ht, 
 see the Preface to Kant's Philosophy of Law. — Te.] 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 265 
 
 examined here, both Fichte and Schelling merely put 
 forward the conception of a common starting-point of all 
 knowledge ; but the realization of this conception was not 
 unfolded and established by them. They only asserted 
 that it ought to be so, but they did not show how we 
 have to proceed in order to begin and attain to the end 
 in view. The ideas of Fichte, indeed, springing as they 
 did from the unlimited freedom of man, winged their 
 way into the relations of life and the hearts of men, and 
 forthwith all the departments of knowledge in their posi- 
 tive contents were kindled anew by them. The form of 
 science, however, remained the same as of old, and the 
 comfortless distraction arising from the divided details of 
 the earlier time still waited in vain for the fertilizing 
 touch of harmony. In the sphere of Jurisprudence, 
 many an accumulated error was set aside, many a better 
 conviction was awakened, and yet on the whole the 
 empirical mode of mastering the wealth of the science 
 continued to prevail even in juristic Encyclopsedia ; 
 because, although it was recognised that the science 
 was an organism, it was not yet understood how its 
 several members were to be brought into their proper 
 place and connection by the new principle that had thus 
 been won. 
 
 Schelliug's 'Lectures on the Method of academical 
 Study,' delivered at Tubingen in 1802,' had for their 
 object the reanimation and better guidance of Science. 
 Their aim was to improve upon the mechanical industrj' 
 and the mere mnemonic mode of acquiring science, by a 
 universal course of instruction regarding Academic Study, 
 and to develop the consciousness that the particular has 
 
 1 [Vorlesungen iiber die Methode des Academischen Studiums. Sammtl. 
 Werke, I. Bd. V.] 
 
266 SYSTEM OF JURISPRUDENCE. 
 
 its value only bj- connection with the universal 'The 
 knowledge of the organic whole of the sciences ought to 
 precede the special cultivation of any one branch or side 
 of them. Whoever devotes himself to a particular 
 science should learn to know the place which it occupies 
 in this whole, and the particular spirit which animates it, 
 as well as the method by which it is to be cultivated. 
 It is by this method that it is connected with the har- 
 monious structure of science as a whole, and it is there- 
 fore also a guide to the manner in which the student has 
 to proceed with his science in order not to serve it as a 
 slave, but to think of it as a freeman, and to deal with it 
 in the spirit of the whole.' The good which was achieved 
 by these Lectures was limited, however, to the incisive 
 inculcation of the truth, that without a knowledge of the 
 living connection of all the sciences any method of guid- 
 ance must be dead, one-sided, and limited, and that in 
 order to rise to a magnificent view of knowledge, the 
 student must necessarily turn to Philosophy. The • so- 
 called ' Absolute ' is the presupposition of knowledge, and 
 all particular knowledge is related to it as the Ideal. 
 This is the foundation-stone of the whole system. From 
 this ethereal height, however, Schelling did not descend 
 to the real world ; his assertion that the Ideal is likewise 
 the Eeal, remained a mere assertion, because the whole 
 movement of the discussion failed to furnish the proof 
 of it. Schelling himself says he despairs of being able 
 ' to enter now into the particular parts of Academical 
 Study, as it is not possible to rear, as it were, the whole 
 of the structure upon the fundamental principles laid 
 down, without at the same time following out the ramifi- 
 cations of science and construing it as an organic whole.' 
 Although he starts from the point of view of giving a 
 
HISTORY OF JUKISTIC ENCYCLOPAEDIA. 267 
 
 representation of the connection of all the sciences with 
 each other, and of the objectivity which this internal 
 organic unity has obtained by the external organization 
 of the Universities, he yet presents no System of Science 
 deduced in a strict way from his fundamental principles. 
 In the beginning of the Lectures we have the pretension 
 of unconditional Unity put forward, and at the end of 
 their external sequence we are presented with the old 
 divisions of positive and not-positive knowledge, and such 
 like. It is therefore easy to understand why the juristic 
 writers of that time were not induced to give up their 
 previous methods by an attempt which thus only com- 
 bined a play of empty ideas with uncertain assertions. 
 Hence, they either held fast by the standpoint of Kant, 
 and, with the aid of a few formal principles, wrote what 
 may be called 'intellectual' Encyclopcedias ;^ or, while 
 preserving the old forms, they took the ideas of Fichte as 
 their starting-point and as the criterion of their judgment, 
 to guide them as to what improvement was to be made 
 in the several branches of Jurisprudence, and as to how 
 the science was to be cultivated in principle so as to 
 satisfy the movements of life.^ 
 
 It was indeed an age of movement, an age in which 
 the importance of Philosophy in relation to Eight and 
 
 1 Miihlenbruch, Encyc. u. Method, des pos. Rechts. Rostock 1807. — 
 Konopak, Ueber den Begriff u. Zweck d. Encyclop. iin Allgemeinen u. der 
 Encyclop. der Rechtswiss. in Besondern. Halle (2nd Ed.) 1806. — Di'esler, 
 IJeber das Verhaltniss des Rechts zrnn Gesetz. Eine Organonomie der 
 Rechtsw. Berlin 1803. — Griindler, Inst. d. Rechts, enth. die Einleitung, 
 Encycl. n. Method. Erlangen 1809. — Wenk, Encycl. n. Method. Leipz. 
 1810.— Unterholzner, Allg. Einl. in das jur. Stud. Miinchen 1802.— 
 Henke, Ueber das Wesen der Rechtswissenschaft u. das Studium ders. in 
 Deutsch. Regensb. 1814. 
 
 2 The most important and instructive of these works unquestionably 
 is Rudhardt's Encyclop. u. Methodol. der Rechtswissen.schatt. Wiirzb. 
 
268 SYSTEM OF JUBISPRUDE2S^CE. 
 
 Law was universally recognised. It was the age in 
 which History, Philology, and Philosophy joined in fair 
 alliance to promote the cultivation of Jurisprudence, so 
 that splendid results, both as regards form and method 
 as well as real and material gain, were realized by their 
 aid. Philosophy and the History of Right constitute the 
 Science of Law, and in their union the spirit of their 
 study found rest. This was also the ' shibboleth ' of the 
 movement in the department .of Encyclopaedia. But as 
 these Encyclopaedias were composed for the use of the 
 schools, notwithstanding that one idea was taken as the 
 basis of the development, system was sacrificed to form. 
 The object was to initiate those who already knew Juris- 
 prudence into the spirit of the science by Encyclopaedia, 
 and to lead the beginner on a higher way to the know- 
 ledge of it by Methodology. In the Encyclopaedia, the 
 authors sketch in brief outlines the derivation of the 
 several branches of Jurisprudence from one principle, and 
 this was called ike spirit of the Science; in the Methodo- 
 logy, they carried out the sketch somewhat farther by an 
 exposition of the spirit of its study. While the system 
 was thus brought near to completion on the one side, it 
 had again to be rent asunder on the other. Love for the 
 study of Law was at least awakened, and an end was 
 put to that mechanical aggregation by which the principle 
 
 1812. — The following may also be referred to : — Meyer, Anieitimg zur 
 Eechtserlernung fiir Deutsche. Eisenach 1818. — Schnaiiherk, Wissen- 
 schaftslehre d. Eechts. Jena 1819. — Lbbell, Lehrbuoh der jur. Encyc. 
 u Method. Giessen 1819. — Wening, Ueber den Geist des Stadiums der 
 Jurispr. Ein Programm. Landsh. 1814. Lehrbuoh der Encyclop. u. 
 Methodol. der Rechtsw. 1821. In the Programme he unfolds in graphic 
 language, and in a thoughtful way, the same thoughts as Feuerbach pre- 
 sents in his work on ' Philosophy and Experience in their relation to 
 positive Jurisprudence,' 1804. 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 269 
 
 of Eight was buried in a soulless mechanism; yet after all, 
 anything like a really living insight into the inner con- 
 nection of its organism, still remained but a pious wish as 
 before. 
 
 Hummel^ was the only writer who made an attempt, 
 which may be characterized as large and logical in its 
 plan, although abortive in its execution, to construct an 
 Encyclopaedia of Jurisprudence on the basis of Fichte's 
 Doctrine of Science and Schelling's Idealism. The first 
 division of the first volume contains a ' speculative part ;' 
 the following volumes are devoted to the dogmatic and 
 historical exposition of the Eoman Law in all its extent; 
 and the whole is composed, not for beginners, but for 
 matured readers. The speculative part is so completely 
 invested in the fashion of Schelling's philosophy, and so 
 impregnated with its peculiar terminology,^ that any 
 clear representation of the sphere of Eight is sought in 
 vain. This work, however, still continues to be of im- 
 portance from the richness of its contents, its logical treat- 
 ment, and its exposition of the gradual development of 
 positive Law, viewed from a higher standpoint than that 
 which is usually taken. But how little it satisfied the 
 requirements of the subject, was shown by the scant 
 appreciation it received, notwithstanding the felt want of 
 the time. 
 
 "With all these conscientious efforts, and after the 
 labour of many years, the main problem thus remained 
 still unsolved. This problem was how to unfold a System 
 develofed through all the branches of science, enclosed in 
 itself, and elaborated likewise in the so -called Special 
 
 ' Einleitung in das gesammte pos. Kecht, aus dem Standpunkte der 
 Wissenschaft. 4 Bd. Giessen 1804. 
 2 Thus History is called ' potentiated objectivity ! ' 
 
270 SYSTEM OF JUKISPEUDENCE. 
 
 Sciences. The fulfilment of this task was the powerful 
 work of Hegel, ' who has the merit of having grasped in 
 the grandest style the relations which furnish the founda- 
 tions of Eight and Morality, as well as Eeligion and Art, 
 as formed and developed in Universal History, and of 
 having carried out the attempt to make the vast sphere 
 of history intelligible from his standpoint.' It lies be- 
 yond our purpose to analyse this standpoint more closely 
 here, although it might well be done without prejudice to 
 its immortal glory of having produced the first and still 
 the only great example of a truly ' wonderful architec- 
 tonic ' of the whole circle of knowledge. In this relation, 
 the writings of Hegel that bear upon our subject, are 
 still unsurpassed, both as regards the scientific form of 
 their exposition and the logical incisiveness and sequence 
 of the system. By the keen edge of the dialectic de- 
 veloped in Hegel's treatment of the Philosophy of Eight, 
 there fell, as if cut down with one blow, a whole forest 
 of misunderstandings regarding the relation of Juris- 
 prudence and positive practical Law to Philosophy. 
 And no sooner was this done than the most difficult 
 problem in the sphere was solved, in the classification of 
 juristic Science according to one leading principle, and 
 juristic Encyclopaedia became what it ought to be, an 
 artistic system constructed upon the solid foundation of 
 one supreme principle. But Hegel wrote a System, not 
 of Jurisprudence merely, but of all the Sciences, and 
 this explains the fact, which has been so often urged 
 against him, that he gave only the most necessary out- 
 lines of Jurisprudence.^ But what was too heavy a 
 burden for the shoulders of the master was taken up by 
 
 1 Grundlinien der Philosopliie des Reehts, oder Naturrecht und Staats- 
 wissenschaft im Grundrisse. Berlin 1821. (Werke, Bd. viii.) 
 
HISTORY OF JUEISTIC ENCYCLOPEDIA. 271 
 
 the disciples, who conscientiously helped to bear it. The 
 territory at least was won. The system of Eight, like 
 everythiag human, had its starting - point placed in 
 Eeason ; it was viewed as reflected in the relationships 
 of life, and was assigned as a science to History. This 
 idea was the thread which guided his successors, the 
 most distinguished among whom have been Puchta,^ and 
 Abegg.^ As regards their philosophical principles, both 
 followed the order of the Hegelian system, and it is only 
 in their special knowledge of what is properly positive 
 that they have any advantage over him. Controlled by 
 his influence, they have at least formally advanced beyond 
 the old defects of the division of the subject, into Ency- 
 clopaedia and Methodology. 
 
 The more recent Encyclopaedias cannot be said to have 
 the same degree of merit in the way of philosophical 
 grounding and internal connection ; and, accordingly, 
 they mostly give either abstract jural conceptions, with 
 a survey of Jurisprudence,^ or they present what is most 
 worth knowing in the several branches of the science.* 
 
 ^ PucHTA, Grundriss zu Vorlesungen iiber juris. Encyclop. u. Methodol, 
 Erlangeu 1822. Afterwards as Introduction to his Carsus der Institutionen. 
 [This is what is translated in the foregoing pages of this work as Part I. 
 But Puchta rather finds his standpoint in Schelling and the Historical 
 School than in Hegel. — Te.] 
 
 2 Abegg, Encyclop. u. Methodol. der Rechtsw. im Grundrisse, Nelist 
 einer Abhandlung iiber die wissenschaftliche Darstellung des Rechts. 
 Konigs. 1823. [Abegg is essentially Hegelian. — Te.] 
 
 3 V. Weber, Ueber das Studium der Rechtswissenschaft. TUbing. 1825. 
 — Waenkunig, Vorschule der Institut. u. Pandekt. Freib. 1837. 
 [Juristische Encyclopadie oder Organische Darstellung der Rechtswissen- 
 schaft. Erlangen 1853.] — Tittmann, Handbueh fur angehende Juristen. 
 Halle 1828.— Vogel, Lehrbuch d. Encyclop. u. Method. Leipz. 1829, 
 1840. — Arndt's Grundriss der jur. Encyclop. u. Methodol. Miinchen 
 1843. 
 
 * V. Low, Einleitung in das Studium d. Rechtswissenschaft. Ziirich 
 
272 SYSTEM OF JUEISPEUDENCE. 
 
 It is only here and there in scattered philosophical ideas 
 and representations of the history of Jurisprudence that 
 these more recent Encyclopsedias can be said to rise 
 above the pre-Hegelian standpoint. The same remark 
 applies to the Encyclopsedias that have lately appeared 
 outside of Germany, in Holland, and elsewhere.^ 
 
 The juristic Encyclopaedia of Falck'^ has real merits. 
 It has found a wide circulation, and been often used as 
 the basis of lectures in Germany. Ealck aimed at com- 
 municating to the young students the elementary know- 
 ledge necessary for the future study of Jurisprudence as 
 a science, and he has done this with the greatest care and 
 erudition. Welcker^ and Ferthaler* have also endea- 
 voured to further the intelligent study of Jurisprudence 
 in another way, and in productions distinct in their 
 arrangement and compass. In his work, which was 
 planned to fill six volumes, Welcker sought by ' throwing 
 off the livery of the guild,' and adopting a freer and more 
 
 1835 (a book distinguished by a select Clirestomathy of Sources). — Barth, 
 Vorlesungen : I. Bund, Jurist. Encyclopadie und das Naturrecht bis zum 
 natiirl. Staatsrecht. Augsburg 1835. — Stoeckbardt, De recta ICti erudi- 
 tione. Lips. 1840 — Allgemeine Jurist. Fundamentallehre. Petersburg 
 1837. — Jurist. Propiideutik, oder Vorschule der Rechtswissenschaft. 
 Petersb. 1839. 2nd Ed. enlarged. Leipz. 1843. 
 
 1 Anne den Tex, Encyclopfedia Jurisprudentife. Amstel. 1839. A. 
 
 Roussel, Encyclopedie du Droit. Bruxelles 1843. — A. Eschbach, Conrs 
 d'Introduction generale k I'^tude du Droit, ou Manuel d' Encyclopadie 
 juridique. 2 Ed. Paris 1845. 
 
 2 Falck, Juristische Encyclopadie. Leipz. 1821. [5th Ed. by lherin<», 
 1850. Translated into French by Professor Pellat, of Paris, in 1841. 
 Part III. of the present work is translated from Falck's Encyclopadie. 
 See Preface.— Tr.] 
 
 3 Die Universal- und die juristisch-politische Encyclopadie und Metho- 
 dologie. 1 Bd. Stuttg. ]829. [This work remains a fragment. Tr.] 
 
 * Recht und Geschichte. Zur encyclopadischen Einleitunc in das 
 Studium der juridisch-politischen "Wissenschaften. Wien 1843. 
 
HISTORY OK JUEISTIC ENCYCLOP-ffiDlA. 273 
 
 generally accessible form, to respond to the interest of a 
 general political culture, and at the same time to satisfy 
 the requirement of academic studies and lectures. His 
 aim was a final union of the philosophical and historico- 
 positive elements, and the healing of the unhealthy 
 dividedness of life and science. He found the means 
 for this end in a systematic arrangement of individual 
 things under common fundamental principles. These 
 principles were summarized by him as Nature, Freedom, 
 and History. By the aid of the analytical method of 
 development, he seeks to construct upon them the whole 
 sphere of life and knowledge, and in going backwards 
 from what was complex to what was simple, he aims at 
 giving a fundamental exposition of the organism of the 
 actual objective human science. With him as with 
 Perthaler, history is at once the basis and starting-point 
 of the whole. Both of them possess a lofty enthusiasm 
 for their subject, and a poetical and eloquent vividness of 
 style. But however much we may agree with them in 
 holding that history is the regulated development of 
 mankind, yet, notwithstanding its unity, history can 
 never form the ultimate principle of a system. History 
 is the reality of the human spirit. We ought to grasp it 
 scientifically, but its unity only comes into existence in 
 being known. Hence history is not the centre of the 
 process of knowledge, and our problem is how to compre- 
 hend the infinite contents of the past by means of con- 
 ceptions representing it, and organically connected into a 
 whole with the present. History is the product of 
 human activity; and our work in science aims at the 
 knowledge of this product. The introductory writings of 
 Scheidler^ arose from the same sentiment, and were 
 ' Paranesen fur Studierende. Erste Abth. Deutscher Fiirstenspiegel, 
 
 s 
 
274 systeSi OF jueispeudbnce. 
 
 devoted to the same end. By the consideration given 
 to the most important problems of the time and the 
 warmth of the style of exposition, they compensated for 
 many defects of another kind. — We may conclude this 
 historical survey by a reference to the recent work of 
 Putter,' which has the great merit of being philosophical 
 in its treatment of the whole subject, and it is one of the 
 few which are begiuning to be in earnest with a universal 
 History of Eight. 
 
 [The more important of the Juristic Encyclopaedias 
 that have appeared since the publication of Dr. Fried- 
 liinder's 'System' (1847) may be briefly referred to. 
 — The ' Juristic Encyclopaedia and Methodology ' of L. 
 Arndt ^ is a short sketch, but it is distinguished by the 
 clearness and precision of its definitions. The Encyclo- 
 pasdia of A. Viroszil,^ from the standpoint of the Kantian 
 doctrine of Eight, gives a comprehensive survey of the 
 subject, with guidance to knowledge of the literature of 
 the Austrian Jurisprudence. The work of Eriedlieb* 
 presents an exposition of the principles, sources, and 
 material of Jurisprudence somewhat after the historical 
 manner of Hugo. — The Encyclopaedia of Blume® contains 
 a general Encyclopaedic Introduction to Jurisprudence, 
 but it is mainly occupied with an exposition of the 
 
 1842. Zweite Abth. Paran. Propadeutik fiir das Studium der Eeeht- 
 wiss. Jena 1842. 
 
 ^ Der Inbegriff der Eeclitswissenscliaft, oder Juristische Eucyclopadie 
 u. Methodologie. Von Dr. K. Th. Piitter, Prof. d. E. zu Greifswald. 
 Berlin 1846. [Putter and Friedlander both write from the standpoint of 
 the Hegelian Philosophy. — Te.] 
 
 = [Juristische Encyclopadie und Methodologie. 2 Aufl. 1850.] 
 
 ' [Encyclopadie und Methodologie des juridisch-politischen Studiums. 
 Ofen 1852.] 
 
 ' [Juristische Encyclopadie. Kiel 1853.] 
 
 '■' [Encyclopiidie der in Deutschland geltenden Eechte, 1847-52.] 
 
HISTOEY OFJURISTIC ENCYCLOPAEDIA. 275 
 
 German System of Eights, which, although it deals with 
 the System from the point of view of the Comparative 
 Method, does not essentially advance beyond the works 
 of the Nettelblatt period. 
 
 [The comprehensive work of Warnkonig (1853)' 
 marks an important advance in the treatment of the 
 subject. Founding upon the organic conception of the 
 Science of Jurisprudence as a whole, with a wide 
 knowledge of its several parts, and a large command of 
 all juristic literature, Warnkonig presents a careful 
 eclectic exposition of the whole subject, with a praise- 
 worthy survey of the Universal History of Jurisprudence 
 and useful Bibliographical references; but his philosophical 
 insight is limited, and his treatment of fundamental con- 
 ceptions is external and inadeq[uate. — A similar effort is 
 carried out with more insight, vitality, and suggestiveness 
 by Dr. H. Ahrens,^ who applies the positive, organic, and 
 ethical conception of the philosophy of Krause to Juris- 
 prudence, with a firm grasp of fundamental principles, a 
 clear survey of the Universal Historical Movement, and 
 a fertile elaboration in detail. — Ferdinand Walter,' dis- 
 tinguished by his knowledge of Church Law and an 
 earnest philosophical reflectiveness, although belonging 
 
 ^ [Juristische Encyclopadie, oder organisclie Darstellung der Kectt- 
 wissenscliaft mit vorherrsohender Kucksicht auf DeutscUand. Ziim 
 Gebrauch bei Vorlesungen und zum Selbststudium. Von Dr. L. A. 
 Warnkonig. Erlangen 1853.] 
 
 ^ [Juristisohe Encyclopadie, oder organische Darstellung der Rechts- 
 und Staatswissenschaft, auf Grundlage einer ethischen Rechtsphilosopliie. 
 Von Dr. H. Ahrens, etc. Wien 1855. Part IV. of the present work is 
 a translation of the most relevant of the important sections of this work 
 of Ahrens, which is much less known than his world-famed Oours de 
 Droit Natwrel. See the Preface to Kant's philosophy of Law for the 
 works of Krause, Rbder, and Ahrens. J 
 
 ^ [Juristische Encyclopadie. Bonn 1856.] 
 
276 SYSTEM OF JUKISPRUDENCE. 
 
 to the Juristi papizantes, has produced an encyclopaedic 
 sketch characterized by clearness of exposition, historical 
 grasp, and organic treatment of the German system of 
 his time. The most important recent Encyclopaedia, 
 from the standpoint of contemporary juristic science in 
 Germany, is the ' Encyclopadie ' edited by Professor 
 Pranz von Holtzendorff of Munich.^ This work is 
 representative of the present advanced state of the 
 Juristic Sciences in the German Universities. Its 
 distinct and organic arrangement, and the consecutive and 
 historical method of the discussions, indicate the encyclo- 
 paedic order of the Science, which, however, is presupposed 
 
 ■^ [Encyclopadie der Eecttswissenscliaft, in systematischer Bearbeitttng. 
 Herausgegeben unter Mitwirkung vieler Eechtsgelebrter. Von Dr. Franz 
 von Holtzendorff, Professor der Rechte in Miinchen. Viei-te umgear- 
 beitete und theilweise vermehrte Aufiage. Leipzig 1882. — The contents 
 of the systematic part (pp. 1390) of this important work wiU. of themselves 
 give some indication of its method and value. The 'ivriters of the several 
 Articles are all recognised authorities in Germany on the subjects of which 
 they treat, and each Article is carefully worked up to date, with historical 
 and bibliographical references : — 
 
 I. PhiloBOphische Einleitung in die Eechtswissenschaf ten. Von Prof. 
 Dr. A. Oeyer in Miinchen. 
 
 II. Die geschichtlicheu Grundlagen der Beutechen Eechtsentwicke- 
 lung und die Eeohtsquellen. 
 
 1. Geschichte und Quellen des EOmischen Rechts. Von K. G. 
 
 Bruns. Durchgesehen von Prof. Dr. A. Pemice in Berlin. 
 
 2. Geschichte und Quellen des Eanmiischen Rechts. Von Prof 
 
 Dr. Paul Hinschius in Berlin. 
 
 3. Geschichte und QueUen des Beiitschen Rechts. Von Prof. Dr. 
 
 Htinrich Brunner in Berlin. 
 
 4. TJeberblick iiber die Geschichte der Franzosischen, Norman- 
 
 nischen, und Englisdien Rechtsquellen. Yon Prof. Dr. 
 Heinrich Brunner in Berlin. 
 
 5. Ueberblick iiber die Geschichte der Nordgcrmanischen Rechts- 
 
 quellen. Von Prof Dr. Konrad Maurer in Miinchen. 
 
 6. Die neueren Privatreckts-Kodificationen. Von Prof. Dr. J. 
 
 Fr. Behrend in Greifswald. 
 
HISTORY OF JURISTIC ENCYCLOPEDIA. 277 
 
 and involved rather than explicitly discussed. While 
 dealing with the subject from the German standpoint 
 and interest, the work is of great value and importance to 
 all students of Jurisprudence.^ 
 
 [In Italy, where 'the Philosophy of Law has been 
 
 III. Das Privatrecht. 
 
 1. Das heiUige Siimische Eecht. Von Prof. Dr. K. O. Bruns, 
 
 Durchgesehen von Prof. Dr. E. Ech in Berlin. 
 
 2. Das Deutsche Privatrecht. Von Prof. Dr. J. Fr. Behrend 
 
 in Greifswald. 
 
 3. Das Beichscivilrecht. YoaTTof. Di. G. MandrymTahingeo. 
 4,5, 6. Das Handels- See- und Wechselrecht. Von Prof. Dr. 
 
 Wilhelm Endemann in Bonn. 
 
 7. Das Pranzosische Civilrecht. Von Prof. Dr. A. Rivier in 
 
 Briissel. 
 
 8. Internationales Privatrecht. Von Prof. Dr. L. von Bar in 
 
 Gottingen. 
 rV. Das offentUche Eecht. 
 
 1. Oivilprozess. Von Prof. Dr. L. von Bar in Gottingen. 
 
 2. Das Kirchenrecht. Von Prof. Dr. Paul Hinschius in Berlin. 
 
 3. Das Strafrecht. Von Prof. Dr. A. Geyer in Munclien. 
 
 4. Der Stra/process. Von Prof. Dr. P. E. John in Gottingen. 
 
 5. Das Deutsche Verfassungsrecht. Von Prof. Dr. von Holtzen- 
 
 dorff in Munclien. 
 
 6. Das Verwaltungsrecht. Von. Prof. Dr. Ernst Meier in Halle. 
 
 7. Das Europaische Volkerrecht. Von Prof. Dr. von Holtzen- 
 
 dorff in Miinehen. 
 Anhang. 
 
 1. Das Deutsche Furstenrecht in seiner Entwickelung und gegen- 
 
 ■wartigen Bedeutung. Von Prof. Dr. Hermann Schultze in 
 Heidelberg. 
 
 2. Die Entwickelung der Englischen Parliaments-verfassung. 
 
 Von Prof. Dr. B. Gneist in Berlin. 
 
 ' [The latest German Juristic Encyclopaedia is that of Professor A. 
 Merkel of Strassburg {Juristische Encyclopadie, 1885). It is a clear, 
 concise sketch, containing excellent definitions and a well - sustained 
 exposition of fundamental conceptions. The Bechtslexicon (2 Bd., Leipz. 
 1875), or Alphabetical part of Dr. v. Holtzendorff's Encyclopadie, also 
 contains many valuable Articles of general interest.] 
 
278 SYSTEM OF aUKISPRUDENCE. 
 
 cultivated, in recent times, with a great zeal and intelli- 
 gent appreciation of the high practical importance of the 
 Science ' (Ahrens),^ the subject of Juristic Encyclopaedia 
 has also been dealt with by Albioi,^ Boncompagni,' and 
 others.*— Te.] 
 
 1 [Cours du Droit Naturel, p. 327.] 
 
 ^ [Enciclopedia del Diritto, 1846.] 
 
 3 [Introdiizione alia scienza del Diritto, 1847. Bonoompagni generally 
 follows Krause's principles.] 
 
 * [For other works on the subject in Italian, see the Bibliographical 
 Note in Kant's Philosophy of Law, p. xxix. The important work of 
 Professor Carle, of Turin, on the Philosophy of Law {La Vita del Diritto, 
 etc.), there specially referred to, may be again commended to the atten- 
 tion of the students. Its historical breadth and vital method are in 
 entire harmony with the spirit and object of this 'Introduction.' Pro- 
 fessor Lioy 's able exposition of the Philosophy of Sight, with the Preface 
 of his French Translators, has been noticed in the Preface to the present 
 work.] 
 
INDEX OF PROPER NAMES. 
 
 Abegg, 271. 
 
 Ahrens, xiv«, xixre, xxv», xxxi, 
 
 75m, 221, 225re, 275, 278. 
 Albini, 278. 
 Althusius, 247m. 
 Amos, Prof. Sheldon, vii, xxvii», 
 
 xxviii, XXXV, 196». 
 Aristotle, 232, 241. 
 Arndt, 271ra, 274. 
 Arnold, Matthew, xxm, xxvin. 
 Austin, 165, 184», 187re, 217re. 
 Austin, Sarah, xivm. 
 Austria, xiiim, xiv-xxiii, xxx, 
 
 xxxiv, 195. 
 
 Bacon, Lord, xira, xii, 235, 244-5, 
 
 248. 
 Bagehot, W., 208n. 
 Bain, 172re. ]73re, 174. 
 Balduin, 253. 
 Bandinus, 240. 
 Bar, Prof. L. von, 277«. 
 Barth, 272«. 
 Beck, 210», 243». 
 Beekroann, 257b. 
 Bedford, 170re. 
 
 Behrend, Prof. J., 276re, 277m. 
 Bell, 204m. 
 Bentham, xiv-xxiii, 173m, 184m, 
 
 196m, 217m. 
 Berbery, Prof. J., 242. 
 Berger, 255m. 
 Bethmann-HoUweg, 40n. 
 Bierling, 254?j. 
 Blackstone, xiv, xxvm, 165, 168m, 
 
 208m. 
 Blume, 274. 
 
 Bluntsehli, xm. 
 
 Boden, xiiiM. 
 
 Boel, 260m. 
 
 Boncompagni, 278. 
 
 Bracton, xiv. 
 
 Brantius, Sebast., 242«. 
 
 Braun, 253. 
 
 Bridgman, 219m. 
 
 Brissonius, 203«. 
 
 Brooke, 219m. 
 
 Brown, 174. 
 
 Brown, A., xxxm. 
 
 Brunner, Prof., xxxvIm, 276m. 
 
 Brunquell, 252, 260m. 
 
 Bruns, K. G., 276?i, 277m. 
 
 Buder, 218n, 243m, 247. 
 
 Burton, J. HiU, 208m. ■* 
 
 Butler, 173m, 
 
 Caldbrwood, 173m. 
 
 Campbell, E., ix, xivM, 165. 
 
 Capella, Mart., 232. 
 
 Carle, Prof., xixM, xxiiji, xxivM, 
 
 XXVM, 217m, 278m. 
 Carpzov, 253. 
 Cicero, 162m, 163. 
 Clark, Prof. E. C, ixM, xviiM, 
 
 165. 
 Clarke, 219n. 
 Clossius, 210m. 
 Code Napoleon, 195, 196h. 
 Coleridge, S. T., xxxiii. 
 Conradi, 210m. 
 Constantine, 49m. 
 Corasius, J., 243m, 246. 
 Crabb, 208m. 
 Crusius, 263m. 
 
280 
 
 INDEX OF PROPER NAMES. 
 
 Cujacius (Ciijas), 211?i, 244. 
 Cujaculupis, 242. 
 
 Dabelot. 263»i. 
 D'Alembert, 235. 
 Delolme, 208n. 
 Descartes, 244. 
 
 Dicey, Prof. A. V., ix«, 208«. 
 Diderot, 235. 
 Dirksen, 204n. 
 Donellus, H., 244. 
 Dresler, 267n. 
 Duarenus, 243b. 
 Du Cange, 204)8. 
 Duisberg, 263». 
 Durand, x)?.. 
 
 Durautis, William, xi«, 239, 240r, 
 347m. 
 
 EcK, Prof. E., 277«. 
 Eck, Van, 253. 
 Eokhart, 210;?.. 
 Eifenhart, 263)!. 
 Elphinstone, 213)(. 
 Endemani], Prof., 277/'. 
 Equiuarius, 243)!. 
 Ersch, 218)8. 
 Eschbach, 272);. 
 Eybel, 260)8. 
 
 Falok, vii, xiii)8, xxvii)8, xxxi, 
 
 159, 175)8, 272. 
 Fichte, 264. 
 Fleming, 173)8. 
 Fowler, 172)8, 173)8. 
 Freymon, 243». 
 Friedlander, xxviisi, xxx, xxxii, 
 
 137, 175)8, 229, 274. 
 Friedlieb, 274. 
 
 Gaius, 135, 213)8. 
 (i.izalupis, Baptiste de, 242. 
 Gerhert, 234. 
 Geyer, Prof, 276)8, 277)8. 
 Gibbon, 207)8. 
 Gildemeister, 263)8. 
 Glossators, 239, 240. 
 Gneist, 208)2, 277)8. 
 Gonne, 257)8. 
 Green, 273)8. 
 Green, J. E., 208)8. 
 
 Grotius, Hugo, xiii, 232, 244, 245, 
 
 248. 
 Grueber, Dr., ixn. 
 Griiiidler, 267n. 
 Gruter, 163?). 
 Guenoux, xxxn, 75n. 
 Guizot, 208)8. 
 Guthrie, Dr. W., xxixn. 
 Guyau, xxK. 
 
 Hale, l6Sn, 208)8. 
 
 Hallam, 208ra. 
 
 Hamilton, Sir W., 172?8, 173h, 174. 
 
 Harrison, Frederic, xvItj, xxxiv. 
 
 Haubold, 219)i. 
 
 Hegel, vii, xxiin, xxx, xxxvii, 
 
 225)8, 236, 270. 
 Hegendorpli, 243n. 
 Heineccius, 204)8, 208n. 
 Helvetius, xixre. 
 Henke, 267re. 
 Herder, 250)8. 
 
 Heron, Dr. D. Caulefeild, xiiin. 
 Henscliel, 204)8. 
 Hertel, 254)8. 
 
 Hinschius, Prof P., 276)8, 277n. 
 Hobbes, xiii, xixw. 
 Holland, Prof, ix78, xvii)8, xxviin, 
 
 xxviii)8. 
 HoUoway, xxixn, 75n. 
 HoltzendorfF, Prof Dr. von, ix)j, 
 
 196)8, 276-7. 
 Hopperus, J., 247. 
 Hnber, 253. 
 Hufeland, 263)1. 
 Hugo, vii, 40)8, 263)?.. 
 Hume, 208)8. 
 Hummel, 269. 
 Hunnius, 253. 
 Hunter, Prof W. A., 135. 
 Hyde, 168)8. 
 
 ICELAKDERS, 162n. 
 Ickstadt, 254?8. 
 Ihering, xixra, xxxin. 
 India, "l96)8, 199)8. 
 Innes, Cosmo, 208)8, 213?8. 
 Isidore, 232. 
 
 Janet, 173)8. 
 Jevons, Prof., xxviw. 
 John, Prof R. E., 277)?. 
 
INDEX OF PEOPEE NAMES. 
 
 281 
 
 Justinian, 135, 238. 
 
 Kames, Lord, 208n. 
 
 Kampz, 218re. 
 
 Kant, vii, xxra, xxv, xxviim, 173n, 
 
 176m, 217n, 260-3, 278k. 
 Kellenberg, 254m. 
 Kemmerick, 254ft. 
 Kestner, 250re, 253. 
 Kirkpatrick, Prof., 135. 
 Konig, 219re. 
 Konopak, 267k. 
 Krause, xxvn, xxxii, 224, 226», 
 
 275», 278. 
 
 Labb^tjs, 204to. 
 
 Lajfus, 243?i. 
 
 Lasius, 254re. 
 
 Laveleye, 217m. 
 
 Leibnitz, 168m, 248, 250-1. 
 
 Lely, 204re. 
 
 Lermenier, xiiim, xivm. 
 
 Levy, Dr. G., xxxm. 
 
 Lieber, 210m. 
 
 Lioy, Prof. , xm, xxxivre, 225n, 278ra. 
 
 Lipeuius, 218m, 252. 
 
 Lobatban, 2l7m. 
 
 Lobell, 268m. 
 
 Locke, 173m. 
 
 Lorimer, Prof., xviira, xxviiim, 
 
 xxxiiim. 
 Low, Ton, 271m. 
 Ludewig, 235. 
 Luther, 163m. 
 Lynker, 253. 
 
 Mackenzie, Lord, 135. 
 
 Mackintosh, Sir J., 173b. 
 
 Maclennan, 217. 
 
 Madihn, 218m, 257re. 
 
 Maine, Sir H. S. , xvm, xvi, xxiim, 
 
 184m, 187ra, 213m, 217ra. 
 Mandry, Prof. G., 277m. 
 Hansel's, Aldrich, 172m. 
 Mansfield, Lord, xviiim. 
 Marbach, 254m. 
 Martin, 219m. 
 Martineau, 173m. 
 Martini, 249m. 
 Massa, 243m. 
 Mathffius, 242. 
 Matthai, 260m. 
 
 Maurer, Prof. K., 276m. 
 
 May, SirT. E., 208m. 
 
 Meier, Prof. L., 277m. 
 
 Meister, 218n, 260m, 263m. 
 
 Menzies, Prof. Allan, 165. 
 
 Merkel, 277m. 
 
 Methodists, 246. 
 
 Meyer, 268m. 
 
 Michelet, C. F., 225m. 
 
 Mill, James, 174. 
 
 MiU, J. S., xxm, xxivra, 172re, 173re. 
 
 Miller, W. Galbraith, xvim, xxm. 
 
 Mommsen, 205m. 
 
 Montfaucon, 213m. 
 
 Mopha, 242. 
 
 Morel, 212m. 
 
 Moser, 257. 
 
 Mourlon, 196m. 
 
 Moyen, 257m. 
 
 Miihlenbruch, 15m, 267m. 
 
 Muirhead, Prof., 135, 184m, 213m. 
 
 MuUer, 162m. 
 
 Nettelblatt, 219m, 255, 275. 
 Niebuhr, 204m, 213m. 
 Normans, 162m. 
 
 Oefele, 162»,. 
 Ompteda, 218m. 
 Otto, 204m. 
 
 Pancieollo, 242m. 
 
 Paulus, 37m. 
 
 Pellat, 272n. 
 
 Pernice, 276m. 
 
 Perry, Sir E., xxixm. 
 
 Perthaler, 272. 
 
 Petrarca, 240. 
 
 Pfeiifer, 210n, 2137!. 
 
 Phillips, XXXV. 
 
 Plato, 232. 
 
 Pollock, Prof., ixm, xvm, xviim. 
 
 Poste, E,, 135. 
 
 Prussia, 195. 
 
 Puchta, xxviim, xxix, xxx, xxxvii, 
 
 175m, 271. 
 Pufendorf, 248-9, 257. 
 Putter, Dr. K. Xh., 274. 
 Putter, S., 257. 
 
 Qotnotilian, 232. 
 
282 
 
 INDEX OF niOPUR NAMES. 
 
 Ramsat, in. 
 
 Ramus, 250». 
 
 Rattigan, xxixn, Ton. 
 
 Rawson, 204n. 
 
 Reeves, 20Sn. 
 
 Reid, 173», 174. 
 
 Reitemeier, 263». 
 
 Reusch, 234. 
 
 Reusner, 243m, 247«. 
 
 Richter, 263re. 
 
 Rivier, Prof. A., 277n. 
 
 Robertson, Prof. Groom, xivm. 
 
 Roder, xxvre, 225™, 275n. 
 
 Ross, "Walter, 208n. 
 
 Roussel, 272m. 
 
 Rudhart, 267m. 
 
 Rudorff, 307J, 32)i, 37m, 40m, 96m. 
 
 Russia, 195. 
 
 Salskowski, Dr. C, 135. 
 
 Sandars, T. C, 135. 
 
 Savigny, vii, xxixM, xxxviii, 40m, 
 
 66m, 74m, 196m, 219m, 240re. 
 Scharf, 260m. 
 Scheider, 181. 
 
 Selielling, xxx, xxxviii, 236, 264-7. 
 ScMeiermacher, 30m. 
 Schnauberk, 268m. 
 Schott, 260m. 
 Schulting, 204m. 
 Schultz, Prof. H., 277m. 
 Schwarz, 260re. 
 Schwegler, 172m. 
 Seebach, 253. 
 Selden, xiii. 
 Sell, 257«. 
 
 Senckenberg, 218m, 257-9. 
 Shearwood, 165. 
 Sidgwick, 173m. 
 Skene, 204m. 
 Slater, 165, 170m. 
 Snetlage, 263m. 
 Spelman, 208m. 
 Spencer, Herbert, xvi, xviiM, xxn, 
 
 xxiM, xxviM. 
 Spinoza, 244. 
 Stahl, xivji. 
 
 Stewart, Dugald, 172m, 174. 
 Stirling, Dr. J. H. , xxxm, 172n. 
 Stoeckhardt, 272m. 
 Stryk, 254re. 
 
 Stubbs, Prof., 208m. 
 Sully, 174. 
 Sweet, 204m, 219m. 
 Sylvester II., 234. 
 
 Tacitus, 42n. 
 
 Tafinger, 263«. 
 
 Talbot, 168m. 
 
 Taswell-Langmead, 208m. 
 
 TerKnden, 263m. 
 
 Terrel, xn. 
 
 Tevenar, 260m. 
 
 Tex, Anne den, 272re. 
 
 Thibaut, vii, 196», 210m, 213n. 
 
 Tholosanns, G., 246. 
 
 Thomasius, 244, 248-9. 
 
 Titius, 255m. 
 
 Tittmann, 271m. 
 
 Trier, 257m. 
 
 Ueeerweg, 172n. 
 Ulpian, xxvM, 33m. 
 Uuterbolzner, 267b. 
 
 Vincent of Beauvais, 234, 239. 
 
 ViroszO, 274. 
 
 Vitruvius, 232. 
 
 "Vives, 234. 
 
 Togel, 271n. 
 
 Voltaire, 235. 
 
 "Walch, 210m. 
 
 Walter, F., xiiiM, 240«, 247«, 275. 
 
 "Warnkonig, 271m, 275. 
 
 Warren, 165. 
 
 Watson, G., 204re. 
 
 Weber, 27 1m. 
 
 Welcker, 272. 
 
 Wening, 268m. 
 
 Wenk, 267n. 
 
 Wesenbeck, 247. 
 
 Westphalen, 243m. 
 
 Wharton, 204m. 
 
 Whately, 172m. 
 
 Winckel, 243m, 260m. 
 
 Wolf, C, 248. 
 
 Worral, 219m. 
 
 Zacahakia, 263)1. 
 Zedler, 235. 
 Ziletti, 218m. 
 Zschokke, 162m. 
 
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