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Curiously enough, the sense of law which is less frequently used in practice than the other two, is the one which has always been selected for definition by jurists. Law is seldom used by lawyers in the technical sense of statute, for in such instances as the “ Game Laws," the “Corn Laws," &c., the word seems to have been adopted from popular language. We speak of the Bankruptcy Act, not of the Bankruptcy Law, the Real Property Statutes, not the Real Property Laws, because these are technical subjects of no political interest. When we speak of Real Property Law we mean, not a statute relating to Real Property, but the body of legal rules (forming part of the law of England) which relate to Real Property, some of them being derived from statutes, but the greater part from the Common Law. The confusion between these three senses of law has, no doubt, partly arisen from the fact that there are cases in which they may be applied as convertible terms. For instance, Evidence is a branch of the law of England, i.e., it consists of a number of legal rules which form a system because they relate to the same subject, not because they arose at one time. If an Act were passed, forming the exclusive source of rules on questions of evidence, the Act would not only be a law relating to evidence, namely, an Evidence Act, but it would also form the Law of Evidence, i. e., a system of rules forming part of the whole law of England, and each of its rules might be called a Law of Evidence.
Before discussing the origin of this ambiguity, it will be convenient to examine the definitions of the principal English writers on jurisprudence, observing, at the same time, whether they have satisfied their own authors, and the writers who have substantially adopted them. 1. Bracton. There are
many inconsistencies in Bracton's definitions, owing to the variety of sources from which he took his materials, that it is difficult to say whether he really grasped the distinction in question. The full title of his work is “De Legibus et Consuetudinibus Angliæ," and in the first chapter he explains why he uses the word
cousuetudines : “ Cum autem ferè in omnibus regionibus utantur legibus et jure scripto, sola Anglia usa est in suis finibus jure non scripto et consuetudine. In ea quidem ex non scripto jus venit quod usus comprobavit.” From this it would appear that he saw the difference between “law" (jus) composed of customs and that composed of “statutes ” (leges), but in his definitions of lex and jus, (cap. III) there is some confusion : “ Lex est commune præceptum virorum prudentum consultum, delictorumque quæ sponte vel ignorantia contrahuntur coertio, rei publicæ sponsio communis.* Item author justitiæ est deus, secundum quod justitia est in creatore. Et secundum hoc jus et lex idem significat. Et licet largissimè dicatur lex omne quod legitur, tamen specialiter significat sanctionem justam jubentem honesta, prohibentem contraria.” In cap. IV he says : "Jus autem derivatur a justitia, et habet varias significationes. Ponitur enim quandoque pro ipsa arte, vel pro eo quod scriptum habemus de jure, quia jus dicitur ars boni et æqui, cujus merito quis nos sacerdotes appellat : Justitiam namque colimus et sacra jura ministramus.”
Let us compare these passages with an extract from Azo's Summa Institutionum † (De justitia et Jure) :
“ Jus ergo derivatur a justitia et habet varias significationes. Ponitur enim quandoque pro ipsa arte, vel pro eo quod scriptum habemus de jure, et dicitur ars boni et æqui, cujus merito quis nos sacerdotes appellat, justitiam namque colimus, I sacra jura ministramus. Unde et leges dicuntur sacratissimæ. Boni et æqui noticiam profitentur, æquum ab iniquo seperantes [sic], licitum ab illicito discernentes; bonos non solum metu pænarum verum etiam proemiorum exortatione efficere, veram nisi fallor philosophiam non simulatam affectantes ut ff. eo l. j. Est autem ars secundum Porphirium de infinitis finita doctrina ab artando dicta, et bene potest hæc juris notitia ars appellari, quia finem habet mirabilem, licet aliæ omnes artes fere infinitæ sint ut in prohemio digestorum sed quia. § Vel dicitur ars, id est artificium. Nam auctor juris est homo, auctor justitiæ est deus, et secundum hoc jus et lex idem significant. Licet
• Almost verbatim from Dig. I., 3, fr. 1.
§ i.e. Const. Tanta 6.18.
autem largissime dicatur lex omne quod legitur, * tamen specialiter significat sanctionem justam, jubentem honesta, prohibentem contraria.”
Philosophy is certainly a snare to jurists.
2. Hobbes does not profess to discuss law as a professed lawyer, but “as Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the law." † His definitions on thesubject are closely connected with his theory of sovereignty, according to which the members of a commonwealth institute Government by agreeing with one another to submit to some man or assembly of men. Among the powers given to the sovereign by this institution is the “whole power of prescribing the rules whereby every man may know what goods he may enjoy and what actions he may do
these rules the civil laws."I And, first, it is manifest that law in general is not counsel, but command, nor a command of any man to any man, but only of him whose command is addressed to one formerly obliged to obey him.”§ “Law implieth a command;" | “when the command is a sufficient reason to move us to action, then is that command called a law.” “A covenant obligeth by promise of an action or omission especially named and limited, but a law bindeth by a promise of obedience in general, whereby the action to be done or left undone is referred to the determination of him to whom the covenant is made. So that the difference between a covenant and a law standeth thus : in simple covenant the action to be done or not done is first limited and made known, and then followeth the promise to do or not do; but in a law the obligation to do or not to do precedeth, and the declaration what is to be done or not done followeth after."**
• Cf. Grotius De Jure Belli. I. i. 8. 9.
Ubi supra 159. $ Levithan, ch. 26.
Human Nature, c. 13, 6. 6.
This celebrated analysis of law into a command by a political superior to a subject has been adopted by Austin with very slight modifications. An inquiry into the correctness of the analysis may therefore be postponed until we come to Austin, but a few words should here be said on Hobbes's other theories.
The notion of a social contrast is now universally abandoned,* but it has not been thought necessary to reject Hobbes's conception of the law at the same time. Yet the latter depends so entirely upon the former, that without the express appoint. ment of a sovereign the notion of law as equivalent to a command ceases to be intelligible. Until a definite sovereignty is instituted (and there must be a preliminary stage) law can only exist by consent, and Hobbes, in his comparison between covenant and law, expressly excludes consent as an element of law.
One great merit of Hobbes is the clearness with which he distinguishes between technical law and law in the philosophical sense:-“These dictates of reason [laws of nature] men used to call by the name of laws, but improperly, for they are but conclusions or theorems concerning what conduceth to the conservation and defence of themselves, whereas law properly is the word of him that by right hath command over others. But yet if we consider the same theorems as delivered in the word of God that by right commandeth all things, then are they properly called laws.”+
3. Blackstone says :-"Law in its most general and comprehensive sense signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational.”I Again municipal law, which is Blackstone's equivalent for the jus civile of the Romans, is “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Blackstone devotes fifteen pages to the vindication of this definition, but as it is almost
* Block: Dict. de la Politique · v. "Contrat Social." Ahrens : Naturrecht I. 8. 20. Lorimer Institutes of Law, 8. † Leviathan, ch. 14.
Comm., i., 38.
identical with that of Austin, it is not necessary to examine it here. Blackstone's definitions are substantially adopted by Mr. Serjeant Stephen and Messrs. Broom and Hadley in their modern editions of the Commentaries.
4. Austin, in the Analysis of his “Lectures on Jurisprudence" lays it down that “Laws proper, or properly so called, are commands; laws which are not commands, are laws improper or improperly so called."* And, in the 1st Lecture on the Province of Jurisprudence, he says :-“A law in the most general and comprehensive sense in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being, by an intelligent being having power over him.”+ “Every law or rule (taken with the largest signification which can be given to the term properly) is a command.”
Although these are the only express definitions of law given by Austin, it is evident that he perceived the inconsistency between them and his definition of positive law and jurisprudence, for he says: “Of the laws or rules set by men to men, some are established by political superiors
the aggregate of the rules thus established, or some aggregate forming a portion of that aggregate, is the approximate matter of jurisprudence.”But although we here have an acknowledgment that law sometimes means an aggregate of rules, as well as a single rule, the first defini. tion of law quoted above, namely, a command of a particular kind, is the only express one given by Austin, the only one which he analyses, and the only one on which he bases other definitions. It is, as will be observed, taken almost verbatim from Hobbes.
Austin himself felt some difficulty in applying his definition universally, but he escaped from it by two somewhat unfair contrivances: first, by accusing the use of law of impropriety, where it cannot possibly be termed a command; and, secondly, by the use of the last thing which we should expect to meet in the works of a disciple of Bentham-a fiction. “Like most of the leading terms in the sciences of juris
* I. 81 (3rd edition). + I. 88. # I. 88.