I have not space here to pursue further Professor Ihering's inquiries into the rationale of procedure. What I have already said is enough to furnish a hint as to the interesting character of these inquiries, and as to the kind of method by which they may be pursued. But the whole subject urgently requires to be thoroughly explored. We are just now engaged upon the task of entirely overhauling our legal machinery, but are we really capable of forming a clear and comprehensive opinion as to what parts of it ought to be changed, and how? We can see, no doubt, defects and deficiencies in the present system, but defects and deficiencies are sure to exist in the newly-substituted as well as in the old discarded institution. No method of administering justice has been discovered, nor is there any probability that any will be discovered, in which the number of failures is not very large. In all our law-reforms we must bear this in mind. I speak not so much of the comparatively small changes which have been already made— though here I think more comprehensive knowledge, and consequently more discrimination, might have been shown -but I have now rather in view the great changes which are contemplated in the future. We talk, for example, of a complete fusion of Law and Equity. How many lawyers or law-reformers have ever considered what the distinction between Law and Equity really is, and what is its origin ?— whether it is a mere accidental separation of jurisdictions, or whether it is one of the indelible features of jurisprudence? Unless we consider, and are capable of answering these questions, we do not know whether our object is good or bad; we do not even know whether we can accomplish it or not.

And, bold as the assertion may seem, I still assert that in England we could carry out these inquiries with as good. chances of success as in the learned schools of Germany. Nay, better. For there is still a defect which pervades all German inquiries into the principles of jurisprudence, and

from which even the works of Professor Ihering are not free. For example, whilst one is struck with the clearness of perception with which particular institutions of law are. treated by him, his conception of Law as a whole is, I venture to say, far from being either clear or consistent. We meet with passage after passage composed of those ambiguous phrases which are just true or untrue according to the sense in which you take them, but which, whilst they are always defended in the sense in which they are true, are very often used in argument in the sense in which they are false. This same confusion existed in all English law books prior to Austin's time, and it exists in many still. But we have the remedy in our hands, and are rapidly beginning to use it. Austin, assisted by the clear and accurate considerations of those analysts who preceded him, gave to the kindred terms Sovereignty, Political Society, Law, Right, Duty, and Obligation, a clear and distinct meaning, dispelling thereby clouds of delusion, and providing future inquirers with something definite to work upon. He thus made, as Sir Henry Maine says, a philosophy of law possible. I admit that, like the circle. and parallel lines of Euclid's definitions, Austin's conceptions are what have been called "imaginary types." But imaginary types may be of the highest practical value as tools to work with, in proof of which we need look no further than the structure raised by geometricians upon their own conceptions. I have attempted, in a former article, to show some of the practical uses to which Austin's conceptions, admitting them to be imaginary types, may be applied. I proceed now to show some of the curious and fanciful confusions into which learned men may drift, who do not possess these clear and accurate conceptions.

*

Some years ago, Professor Ihering published an eloquent tract called "Der Kampf Um's Recht" (the Struggle for

Law Magazine and Review No. 221, August, 1876.

"Recht "), which has been very popular on the continent of Europe, but is, I believe, little known in England. The moral lesson it inculcates, to use the author's own words, is that "der Kampf um's Recht ist eine Pflicht des Berechtigten gegen sich selbst " (the struggle for "Recht," is a duty which the party entitled to the "Recht" owes to himself). I do not myself think this moral lesson a very important one for us, far otherwise as it may be in some continental countries, but with this, at present, I have nothing to do. I only wish to examine the accuracy of the learned Professor's legal conceptions. He proceeds to assert that "das Recht ist Kampf" (" Recht" is a struggle), and from this conception of law he draws a variety of inferences. If nothing more were meant than that "Recht" cannot be conceived without a sanction, and that this necessarily calls up the notion of a breach of the law, of a remedy, of the pursuance of this remedy by the injured party, and of resistance by the wrongdoer, I should not think for a moment of combating it. But here is just one of the ambiguous phrases against which we must always be on our guard. If more is meant than this-if it is meant that the essential part of the conception of law, to which the rest of the conception is subordinate, is the struggle which takes place when the law is broken, between the injured party on the one hand, and the wrong-doer on the other, then I must join issue. The struggle is an accident, and is no part of the conception of law. The sanction in the nature of punishment which the parties strive, the one to procure and the other to avoid, is a part of this conception, and a necessary part, but it would be wholly erroneous to treat one part of the conception of law as superior to, or more important than, another. In fact, as Austin points out, the terms Command, Duty, and Sanction, are inseparably connected terms; each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series.

It would be ridiculous if, when we were dis

coursing upon surgical operations, we were to say "surgical operations are the infliction of pain ;" and yet we might just as well say this as say "law is a struggle." Perhaps this latter phrase does not sound so ludicrous in its German equivalent, but anyhow it is an ambiguous and partial statement which appears to me very likely to mislead.

Similar to this, but still more unsatisfactory, is the phrase, "die Thatkraft, die Gewalt ist die Mutter des Rechts" (energy, force, is the mother of "Recht "). (Geist des Röm. Rechts, Vol. I., p. 114, 3rd ed.) This is boldly laid down as a fundamental maxim, from which the most important consequences are capable of being derived. In an earlier passage, the author had declared it to be one of the "Tuitialer" of Roman legal history, " dass die persönliche Thatkraft die Quelle des Rechts sei" (personal energy is the source of "Recht "), p. 107. Of course, when dealing with language so metaphorical, it is difficult to say that there may not be a sense in which these assertions are true. Every age may, in a way, be looked upon as the child of the age which preceded it; and as an age of anarchy or war may be followed by an age of peace, so anarchy or war may be said to be the mother of peace. But I am satisfied, that no one who has read this part of the work, will attempt to say that the author only intends to indicate the order of historical events. He clearly intends to establish an important juridical connexion.

The argument by which the truth of the maxim thus laid down is attempted to be established, appears to me to be extremely weak. It is first pointed out, that oppressed subjects very often by force get rid of their tyrannical rulers, and having done so, establish new governments; that the leaders of conquering armies, after having won their victories, very often impose new laws upon the defeated nations. This is true, but is, I venture to say, nothing to the purpose. The seed sown on the ground perishes, and must perish, before the new plant can spring up. Can it,

therefore, be said that death is the cause of life? Only as a poetical fancy, and not in any scientific sense. The cause of life in this case is the combination of new elements. The cause of law in the cases put is precisely the same. The old society with its old laws has been destroyed, but the elements of a new society remain, and from these it is reconstructed. In truth the learned author has travelled here entirely out of his route. The convulsions which he here speaks of as the sources of law are really nothing more than the events which render it necessary that new laws should be made.

Next to this Professor Ihering adverts to the fact, which may, for aught I know, be true, that all Latin words which eventually came to express ownership originally expressed seizure by force. He also points out, which may also be true, that the Romans had originally no idea of ownership which did not originate in force, and again, that the only idea of redress which they originally had was self-help (selbst-hülfe), that is to say, such revenge or retaliation as the injured party was able to take: and it is on this last fact that he seems mainly to rely for the truth of the assertion that might is the mother of "Recht."

Of course the mere historical fact, that men once relied for protection, not upon the external protection of a state, but upon their own strength, with such help as they could get their neighbours and friends to lend them, has nothing whatever to do with our present inquiry. I cannot suppose that so learned a writer intended to utter mere platitudes. Nevertheless, I do find it difficult to ascertain exactly what assertion, as regards law, he intended to make.* But

* In an Essay, on the Modern idea of Law according to the Modern German Schools, in the Revue des Deux Mondes, for 1st June, 1874, M. Alfred Fouillée describes the position thus: "La Société réduite à un système de forces où le triomphe appartient, en fait et en droit, au plus puissant ou au plus intelligent, telle est la perspective finale devant laquelle nous laissent les écoles de l'Allemagne."-ED.