time speak of lex natura instead of jus naturale ;* thus Ulpian himself says: "Lex naturæ hæc est ut qui nascitur sine legitimo matrimonio matrem sequatur, nisi lex specialis aliud inducit."+ From all this confusion was developed the theory that the rules of positive law, which are indirectly the result of natural laws, are identical in their nature with these natural laws themselves. This theory is conspicuous in the celebrated work of Montesquieu on "L'Esprit des Loix," and has not quite disappeared from the writings of French philosophers. Montesquieu defines "les loix" as "les rapports nécessaires qui dérivent de la nature des choses," and considers that all animate and inanimate bodies have their "loix." It is true, he admits, that "les êtres particuliers intelligents prevent avoir des loix qu'ils ont faites," but "ils en ont aussi qu'ils n'ont pas faites. Avant qu'il y'eut des êtres intelligents ils étaient possibles; ils avoient donc des rapports possibles, et par conséquent des loix possibles." These observations are perfectly in place in the introduction to a work on legislation, but standing by themselves they have no effect beyond confusing the reader's ideas, instead of assisting him to a comprehension of the differences, not in degree only, but in kind, between the laws of nature, i.e., the formulæ of philosophy and science, and the positive law which is the direct subject matter of jurisprudence. I also been deWe have seen passed by the Another theory of some importance has veloped from a perverted use of lex and leges. that lex in its proper sense meant an Act populus, but after the populus had lost the exercise of its legislative powers the term lex was commonly used to denote any enactment, whether by the plebs, the senate, or the Emperor. Again, after the great race of jurists. had died out, the statute law and the case-law (jus a prudentibus compositum) were commonly distinguished, Dig. II. 14, 27, s. 2, XLVIII. 20, 7 pr. † Dig. I. 5, 24; cf. L. 17, 206. † Cf. Block "Dictionnaire de la Politique" v. "Contrat Social," and " 'Loi." the former as leges, the latter as jus.* This was an intelligible distinction, but it disappeared at Rome in consequence of Valentinian's regulation as to citations from the works of certain jurists, the effect of which was to give the force of law (legis vicem) to their opinions in certain cases, and hence the jurists were called conditores legum, or legislatores, and their binding opinions leges. This was the origin of the old fashioned mode of citing the fragments in the Corpus Juris as leges. Either the habit of thus calling every rule of law a lex, or the neglect of all sources of law except the constitutions and cases re-enacted or re-published by Justinian as statutes, deriving their sole force from his legislation, or, as Hugo suggests, the growing materialism of the time, gave rise to a theory which has had a most misleading effect on many questions of jurisprudence, the theory that legislation is the sole source of law. The falsity of this theory is so obvious to any one who has studied the history of law, and has besides been so ably criticised by Hugo,|| Savigny,§ and others, that there is no occasion to discuss it here. The same causes gave rise to the use of leges,¶ lois, leggi, &c., as synonymous with jus, droit, diritto, &c., which is especially common in French and Italian writers; this in its turn caused lex, loi, legge, to obtain the signification of "rule of law" (for which the classical Latin was jus, not lex),* and even of "law" in the abstract, in place of jus, droit, diritto, &c. Latin, therefore, has one advantage over English in possessing distinct words for "law" and "statute," namely, jus and lex, but this advantage is almost counterbalanced by the Savigny System, I. 120. The jus civile Romanorum was known among the barbarians as the "Lex Romana." "Die Gesetze sind nicht die einzige Quelle der Rechtswahrheiten." Civil. Magazin, iv., 89. § Vom Beruf, c. 2. "Jurisprudentia est scientia legum." ** Lex and leges are so used by Bracton, Fortescue, and other early English writers on Law, and it is probably from this source that law obtained the meaning, "rule of law." ambiguity of jus, which not only means "law" and "rule of law," but right or faculty. So that an English writer, in translating from Latin, would not only be puzzled by the use of jus and lex to express conceptions for which his own language has only one word, but he would also find it difficult to know when jus meant law and when right. Accordingly, the most ludicrous mistakes have been made by the older English writers in borrowing from the Roman Law. Thus Hobbes says:— "The names lex and jus, that is to say law and right, are often confounded, and yet scarce are there any two words of more contrary signification. For right is that liberty which the law leaveth us, and laws those restraints by which we agree mutually to abridge one another's liberty. Law and right, therefore, are no less different than restraint and liberty, which are contrary, &c."* And, again, in the Leviathant:-"I find the words lex civilis and jus civile, that is to say, law and right civil promiscuously used for the same thing, even in the most learned authors, which, nevertheless, ought not to be so. For right is liberty law is an obligation. obligation and liberty.”‡ but civil lex and jus are as different as The error of Sir Mathew Hale and Blackstone in converting the jus personarum and jus rerum of the Institutes into jura personarum and rerum, and then rendering them by the "rights of persons" and the "rights of things," has been sufficiently commented upon by Austin.§ A writer of the Benthamite school, Mr. James Mill, who, although entirely ignorant of law, took upon himself to write the articles "Jurisprudence," for * "De Corpore Politico." Part II. ch. 10, s. 5. † Part II,, ch. 26 ad fin. See also "Leviathan, c. XIV., where Hobbes translates jus naturale, the "right of nature.' 66 The term " Rights of Things" is not such pure nonsense as Austin asserts, of " may here mean in respect of," as it does if we say "Law of Things." It is remarkable that Savigny considers "jus personarum" to mean not "law of persons," but "the position of the individual in the legal relations of the family: it denotes not the jus objectivum [law] but the jus subjectivum [right]." System I. 400. This is in effect almost a reconciliation of Austin and Blackstone, for Savigny thinks that jus here means 'right," which is what Blackstone says, and he also thinks that the division of the Institutes entitled Jus personarum deals with "status," which is what Austin says, but Savigny confines it to the status of members of a family. "Law of Nations," &c., in the Encyclopædia Britannica, has the impertinence to talk of “that disorderly mass, the Roman Law," which, according to him, "changes the meaning of the word [right], in stating its division of the subject, jura personarum and jura rerum. In the first of these phrases the word jura means a title to enjoy in the second it must of necessity mean something else, because things cannot enjoy. Lawyers, whose nature it is to trudge one after another in the track which has been made for them, &c., &c." It is a pity that Mr. Mill did not take the trouble to understand the phraseology of the Roman jurists before condemning it. Again, in translating law into Latin, English lawyers always use the word lex, even when "law," meaning the body of legal rules, properly answers to jus. Hence lex scripta and lex non scripta are commonly used instead of jus scriptum and non scriptum, although it would have been less trouble to take the proper expressions from the Institutes. But the phrase, "municipal law," is the most curious instance of the confusion between jus and lex. Municipal law, Blackstone tells us, is so called by him "in compliance with common speech, for though strictly that expression denotes the particular customs of one single municipium or free town,* yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and customs."+ Even if municipal law originally meant the particular customs of one single municipium the extension of the term to a sense diametrically opposed to its original meaning would be sufficiently remarkable. But, as it happens, lex municipalis means not the customs or law in force in a particular municipium, (which if it had a name would be jus municipale) but the charter or constitution incorporating the municipium (Dig. XLVII., 12. 3., s. 5.; XLIII. 24. 3. S4).‡ * Cf. Bentham: General View of a Complete Code of Laws; s. 1. The origin of the use of lex loci to denote local law is more obscure. We cannot have taken it from Ovid: Quid frustra refugis? cogit nos linea jungi : Amor. III. 2. 20.-It may be derived from a passage in the Digest (L. 6. fr. 6 s. 1.) where lex loci seems to be equivalent to lex municipalis. Locus frequently means a municipium in Roman law (Dig. XXII. 5. fr. 22.) III. We are now in a position to understand the reasons why our authors have not given complete definitions of this unfortunate word law. Blackstone analyses his own definition at considerable length, and from one not altogether logical passage we may conclude that he adopts the theory that legislation is the sole source of law :-" Municipal law is a rule of civil conduct prescribed by the supreme power in a State. For legislature [= legislation], as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law that it be made by the supreme power. Sovereignty and legislation are indeed convertible terms; one cannot subsist without the other."+ According to this a State which regulates its internal affairs by custom has no sovereign. * Moreover, Blackstone was no doubt misled by the similarity between law and lex, and their supposed identity of meaning. This has evidently influenced almost all writers on the subject. Thus Hugo says: "In English law and not right [in German Recht, like jus, signifies "law" as well as "right"] is used for an abstract system of legal rules, with the addition of adjectives, which are often inconsistent with the original meaning of lex. The municipal law' of English authors, meaning the particular system of law in force in a given country, may be excused, but common law,' i. e., that part of the law which depends not upon Acts of Parliament, but to a great extent at least, upon custom, as opposed to 'statute law,' is as inappropriate an expression as canon-law."§ The author seems to think that law is derived from, and has the same meaning as lex, and that "statute law means a single Act of Parliament, both of which notions are erroneous. Thirdly-Blackstone seems to have been misled by the opinion current in those days concerning the so-called laws * Bentham sagaciously observes, in quoting these words, "he might have added, or at least supported." Fragment on Government: Introduction, n. (a). Supra, p. 646, n. (*). § Op. cit., p. 103. ↑ I., 46. |