The nature of positive law

Preface

It has now in several ways become evident that the idea of Law upon which Austin founded his system of Jurisprudence cannot be accepted as final, but must be treated as only a first approximation, valuable indeed, but defective, and therefore requiring to be supplemented by further enquiry. I was myself led to this opinion by discovering that the Austinian analysis threw so little light upon the real nature of '^ legal Rights as to be of comparatively small value in iavestigating their substance as opposed to their mere enforcement. This view was pressed upon me again and again as I examined the various Rights of property, and I believe the current system breaks down entirely when we attempt to explain by it the Roman theory of Possession. Being thus led to distrust the results which I had long accepted as final, I found that there were two ways of attempting to correct them — the historical and the analytical. The former way reveals to us the actual manner in which the various elements of Law have come into existence, and if we compare the results which have been attained by difi'erent Jurists on the latter system, we discover the various aspects of Law that have from viii PREFACE.

time to time forced themselves on the notice of the legal philosopher. Each of these methods fortunately can be easily employed at the present time. The researches of Sir Henry Maine upon the early history of Law, and the luminous sketch of the rise of Eoman Law which we have received from von Ihering of Vienna, enable us to grasp the different elements of Law in their very origin ; while the theories of Law which have been quite recently elaborated in Germany enable us, by an actual comparison, to correct the deficiencies of Austin. These remarks show the general design and method of the present volume. The early, or historical, part contains enough to justify also a re-examination of the analysis of a legal Right, but the length to which the later part has gone in the discussion of the nature of Law, prevented my carrying the enquiry so far at present.

I wish to express the obligation which I am under to the two distinguished Jurists above mentioned, and if I have not always accepted the whole of their conclusions, it is because I preferred to follow the spirit rather than the letter of their teaching. The position which each occupies in the development of legal philosophy is very interesting. Sir Henry Maine, as is well known, has brought forward historical facts to show that Austin's system is not of universal apphcation, yet he accepts it as a good working theory for the legal systems of modern times. Germany, too, has had its historical school succeeding an analytical one, but with this difference, that the former was not content merely to apply corrections to the old

PREFACE. ix

analysis, but started a new theory of its own. The opposition of the two is typified by the contention between Thibaut and Savigny at the beginning of the present century. But in speaking of Savigny as — the founder of a historical school, we must remember that his views upon the origin of Law were little more than conjecture, hence it was to be expected that the next Jurist who was capable of independent thought would reject them. This, indeed, Ihering has done ; he returns to the old lines, establishes Law on Force, and reconstructs a system equivalent to that of Austin. It is to be noticed, however, that he carries his results a stage further, and includes in his idea of Law the limitation of the Sovereign power.

With all this before us then, it is impossible to be content to rest finally in Austin's conclusions. The view of Law which Savigny and Puchta adopted, and which was sharply repudiated by Ihering, has received unexpected confirmation from the works of Sir Henry Maine, and the analysis of Ihering himself has led him,'^ upon other grounds, to a point which is far in advance of Austin. That I have adequately employed the material thus placed at my disposal, I cannot say ; it must be sufficient if I have done something to emphasise the defects of the current system, and to make the way easier for subsequent enquirers. It will be seen that I lay claim to no originality in the views I maintain. Some of them, indeed, seemed at one time to be my own, but wider reading has shown that they rest on better authority than any that I could give them, and to their proper authors I have gladly referred

X PREFACE,

them. This will be evident in the course of the work ; and there is only one point which I need specially mention here. I have tried to show that there exist sufficient historical reasons for the different views on Law which have prevailed in Germany and in England. This idea I for some time thought to be my own, until, on referring to some notes which I took of Prof Pollock's introductory lecture last October at University College, London, I found that, however unconsciously I had retained it, it must have been originally suggested by him. I am glad, therefore, to make this acknowledgment to a writer who has shown how happily practical sense and humorous criticism can be combined in the treatment of Law.

In conclusion, I may say that perhaps hardly any idea of Law is likely to be accepted by aU students ; it is sufficient if each aspect is from time to time brought prominently forward, and so made to influence actual conduct. In the complication of human affairs it is enough for us to give every view proper expression and representation ; the blending of them is effected, and the final result worked into the history of the race, by forces which are beyond human control.

Soon after I wrote the above, and when the following pages were already in the publisher's hands, there appeared Professor Clark's work on " Practical Jurisprudence." The view of Law which he has propounded is in some respects so similar to the one adopted here, that I was at first in some Little difia-

PREFACE. XI

culty as to the proper course for me to take. Had that work, indeed, been published a few weeks earlier, I should have thought it necessary either to withdraw or at least to make extensive alterations in my own ; as it was, I at once communicated with Professor Clark, and I have to thank him for the ready courtesy with which he recognised the independence of our investigations and left me at liberty to act as I thought fit. Perhaps, then, this explanation will be enough to account for any coincidences between the two works that may be observed, and it will be easily seen that if our results are occasionally the same, the methods I have employed are but too clearly my own.

Contents

CHAPTEE I.

PAGE

JUKISPRTJDENCE AS A SCIENCE .... 1

Chapter I. Jurispettdenob As A Science

Considering the vast interests which are affected by the system of law that prevails in a country, it is strange that the scientific treatment of the subject should have commenced in England at so late a date, and that its progress should still be regarded with but little attention. Bentham and Austin are generally credited with having made the first efforts in this direction, . but the attempts to follow them have been by no means adequate to the importance of the subject. The latter, indeed, is better known as the founder of Jurisprudence proper, and a singular concurrence of events placed him in a position which gave extraordinary weight to the system he propounded, and enabled it for a long time to pass almost without criticism. Of these we may instance the fact that at a period when public interest was being strongly drawn to legal matters he occupied a field of speculation which was almost entirely new, and that he did so in a manner which. would have made him conspicuous among rivals, had any rivals at the time existed. He further had the good fortune to be connected with the most distinguished philosophical

2 THE NATUEE OF POSITIVE LAW. [i

writer of the time, and much of his work has been recovered from the notes taken by that pupil. Not a little too of the credit which Austin obtained, was due to the anxious care with which he strove to introduce exactness of thought and expression into a subject which had hitherto been left to vague generalities, and his work not only established the science of Jurisprudence, but created a possibility of introducing some certainty into the other social sciences as well. From this point of view, indeed, it can never be too highly praised, and considering the greatness of the task he attempted and the success he achieved in solving it, the defects which are sometimes charged against his style may well be excused. But the solitude in which Austin was at first left could not continue. His work gradually attracted the attention of students, and from some of these criticism was certain sooner or later to come. This result would, perhaps, have been attained earlier had not Jurisprudence occupied among us a position of insular isolation from which other sciences are happily free. It is strange that although our law is in a condition which calls for continual denunciation, yet, as a people, we believe that our knowledge and treatment of the subject is a matter upon which we may take some credit. There is indeed a tacit understanding that though in many other sciences the most valuable results come from abroad, in this at least we occupy a position to which little can be added by foreign intercourse.

Yet, if we consider that continental jurists had been iit work for centuries before any systematic attention was given to Jurisprudence in our own country, and that they avowedly took the Roman law for the basis of their labours, the opinion may not seem paradoxical that we should rather check our speculations by their results, than expect them to receive the Austinian system as a new and beneficent boon. But though much might have been gained by the study of the German jurists, it was perhaps better that the first criticism of weight upon Austin's system should come from another quarter. The best way of impressing its defects upon the English mind was to show that there existed cases to which that system could in no way be applied. This work was done by Sir Henry Maine, first when he explained the legal ideas existing in the Village Community, and next when he reconstructed the primitive conditions of the Irish tribe. The services which he has thus rendered to the science of Jurisprudence are of course invaluable. At a time when the work of Austin seemed by the mere weight of his name to prevent all whisper of doubt, we have the completest proof that his system is by no means of universal application, and that, perhaps, it must only be regarded as a first attempt to arrive at the ultimate ideas of the science. In this state of affairs it seems to be not unadvisable to consider what is the real cause which has hitherto separated our Jurisprudence from the same science elsewhere, and we have now sufficient material at our command to construct such a view of the matter as may assist us also to a better appreciation of the destiny that lies ' before it. For this purpose I intend to give as clear an account as within my limits is possible, of tlie course that Law has hitherto taken ; we shall then be able to determine whether the system of Austin, subject to certain limitations, is to be accepted as final, or whether we may not rather hope in the future for a system founded more surely upon the essential elements of Law and capable of a more extended application. So little, however, has the real nature of Jurisprudence as a science been hitherto understood, that some attempt must first be made to vindicate its claim to that title, and to define the subjects with which it deals.

Eecent works have shown that we are stUl in much uncertainty as to the proper scope of Jurisprudence, but there seems to be little doubt that the word ought to denote the science of Law in all its branches, and any attempt to restrict the word to one of those branches should be discountenanced. Thus Austia would restrict it to the science of Positive Law as it is ; Professor Holland, again, is careful to disclaim for it any connection with the substance of actual law, and describes it as " the formal science of Positive Law " ^ ; while Professor Pollock would abridge the part of this which is merely formal, and urges a greater infusion of Material Law.^ I shall try to show that there is really no need for this conflict about the word, but that it does and ought to include the treatment of Law from difi"erent points of view, and that it is open to each writer to select his own department of it.

^ Jurisprudence, p. 11. 2 Essays in Jurisprudence and Ethics, p. 6.

iJ JUKISPRUDENCE AS A SCIENCE. 5

Every volume which treats of Law with a view to defining its terms, to exhibiting its arrangement, to explaining its principles, and to showing how they may be carried into efi"ect, is a work on Jurisprudence, just as much as any volume which treats of number and space in their various applications is a work on Mathematics, f Jurisprudence is the most general word we have to denote the scientific treatment of Law, and there is no reason to restrict its natural meaningTl We shall, however, gain the best idea of its various departments by considering the modes in which it has been actually developed. \Tbe science of Law exists for the following purposes —

1. To acquire knowledge of it.

2. To eff'ect improvements in it.

Everything, then, which contributes to these ends comes within the sphere of JurisprudenSSP^

Like many other sciences Jurisprudence starts from a basis of actual rules. This basis is found in existing systems of law. Thus the law of a cduntry may be said to exist at first in certain rules, and these are learnt by heart or recorded in books. At that time a lawyer has a knowledge of law, just as a practical engineer has a knowledge of rules of engineering ; but neither can be said to possess any smattering of science. This indeed does not arise until there is a desire to explain the principles upon which the rules rest, and until lawyers and engineers appear who are capable of doing this. Engineering, however, is only one out of many of the practical applications of

6 THE NATURE OF POSITIVE LAW. U

mathematics, and this latter science has not been formed by working back from engineering rules, but, having first arisen in a far simpler way, it has come fully grown to the assistance of the practical science. With Law it is different. It has only one practical side, and from a consideration of this Jurisprudence has been formed. It may be difficult, indeed, to say when the treatment of Law has become so refined as to be worthy of the name of a science, and its real progress is of course different at different times and places. We may say that it depends largely upon the influence which the jurist, i.e. the legal expert, has upon its improvement ; an influence which the Eoman lawyers possessed in a very high degree. It was their aim, moreover, to bring thenrules more and more into harmony with actual needs, and they turned Law into a science when they discovered, as they imagined, a principle by which this harmony could be brought about, and by which their rules could be explained.

The course adopted by English lawyers has been usually the reverse of this. They may, indeed, ascertain their rules with much clearness, and make them so general as greatly to reduce their number, but to explain the bearing they have on the relations of human life has been quite beyond their scope. An example will make this clear. Few treatises on English law have had such a reputation as Fearne's Contingent Remainders, and yet few are at the present day so completely useless. I do not say that in discussing rules it has no allusions to public

I] JUEISPRUDENCE AS A SCIENCE. 7

convenience, but these bear only a small proportion to the whole matter of the arguments. It is an elaborate and very admirable statement of the highly technical rules affecting certain estates ; but with the abolition of the incidents upon which these estates depended, the rules themselves have vanished. They were the product of an artificial system which only waited till the true science of Law was born to be banished to its proper limbo. Now the only subject in Roman law which bears anything like the same proportion to that which the feudal tenures bear to English law is the subject of possession, and it is needless to remark how different is the treatment in the two cases. Each alike has vanished from actual law : the feudal tenures are almost gone, and possession, as equitable ownership, was long ago absorbed in real ownership ; but the latter rested upon permanent facts and needs of life, and its rules were worked out in accordance with those needs. While, then, it is possible to present these in a truly scientific manner, we can hardly imagine a future Savigny making his reputation by a masterly exposition of the rules of contingent remainders. I must confess to a certain feeling that Law is meant to serve the interests of the people, and that no treatment of it can be called scientific which does not show how it contributes to this end.

I have said, then, that the treatment of Roman law became scientific as soon as the jurists learnt to explain its principles upon rational grounds. Let us apply the same test to English law. The first systematic exposition of English law which we need

8 THE NATURE OF POSITIVE LAW. Li

consider is that of Blackstone, but it fell into great discredit with succeeding jurists because of this very want of the scientific element. We must not forget, however, that as a compendium of law it had great merits. It presented the law in a perspicuous and interesting manner, and attached to it a large amount, if not of rational, at least of historical explanation. For this indeed it is not easy to find fault with the author. His object was to enable the laws of England to be known, and in this he may be said to have succeeded so far as it was possible for any man to succeed. There are two ways besides the merely empirical, in which law can be learnt ; one is the historical, by showing the historical facts in which it has had its rise ; the other the rational, by showing how it is founded on current morality assisted, where necessary, by the principle of utility. I need hardly say that Blackstone was obliged to choose the first mode because the second was impossible. It has been remarked that Bentham was driven to adopt his method through sheer repulsion from Blackstone ; but how little this was due to any faidt of the latter is clear from the fact that Bentham was compelled to break altogether with law as it is, and deal exclusively with law as it ought to be. Since it was impossible to explain existing practice on rational principles, he preferred to lay down the principles and wait for them to be incorporated into practice. Hence we received from him the principle of utility, with the many applications which he made of it in his plans for the Civil and Penal Code. But it must be remembered that Bentham was before his age, and however great may be the advantage we have derived from this fact, yet it introduces a disturbing factor in the natural growth of Jurisprudence. (_The proper successor to Blackstone was Austin, with his Comparative and Analytical methods, followed as he has been by Sir Henry Maine and others^ I shall try to justify this remark in the following manner.

Bentham boasted that by his Fragment on Government he was the first who urged men to break with the laws of their ancestors and to venture freely on a career of reform. But however necessary this may be at certain times, it is opposed to the real instincts and interests of men. The true course is shadowed forth in Eoman history. There we find that the first improvement came from the consideration of the laws of other nations, and only afterwards was it accelerated by the invention of a law of Nature. Thus the comparative treatment of Law preceded its free theoretical treatment. The same course was really taken by Austin. Disapproving of Blackstone's method as much as Bentham, and accepting fully the principle of utility of the latter, he yet felt that something more was wanting to the construction of a science of Jurisprudence. We must know not only what principles and distinctions seemed to Bentham necessary to be incorporated in law, but we must know what principles and distinctions have actually been incorporated elsewhere ; and the main reason is, that this very fact of incorporation elsewhere is one of the best proofs we can have of their utility. The most practical department of Government, perhaps, is that of the Post Office, and I believe that when a new plan is proposed here it is first thought necessary to enquire how it has worked in other countries which have adopted it. We do not often, indeed, go so far as this in Jurisprudence, but remembering that all law is of slow growth, we may well conclude that it is only incorporated into the systems of other countries if it answers to a real need. Now for our purpose it is enough to compare the Roman law with the English, and this is what Austin did.^ Let us consider, then, more nearly the result of such a comparison.

I have said that the object of the science of Law is to exhibit and explain its ideas and principles in. such a manner as to facilitate their acquisition by the lawyer and their improvement by the legislator. As long as we take our distinctions solely from English law and explain them merely by history, we do not enter upon science, for the distinctions and principles may be merely accidental, and the historical reasons may have no reference to utility. If, however, we were to show that these distinctions and principles have a real basis in the wants of the people, we should then treat the law scientifically, and we should work out the Particular Jurisprudence of the country. This at least is the only natural meaning I can give to this phrase. Jurisprudence deals with the regulation of human relations and of human acts in accordance with the needs of men ; if, then, we take up a body of law and show how its distinctions are of permanent im-

1 Austin, ii. 1113.

i] JUEISPRUDENOE AS A SCIENCE. H

portance, and how its principles conform to this object, we have a case of Particular Jurisprudence. It is Jurisprudence, for it deals with the law in a scientific manner, and it is Particular, for it draws its conclusions from one body of law only. But if, now, we can compare this with another body of law which is known to be of consummate value, and if to this the scientific method has already been applied, our course is rendered much easier. We need not take every distinction and enquire whether this is of permanent or merely accidental importance ; the surest test will be to note whether a similar distinction exists in our model system. I have already referred to the incidents of contingent estates, and many other parts of the feudal system might be mentioned which have no counterpart in Eoman law ; the probability, then, is that they are of but temporary interest, and that it is sufficient to notice their existence without seeking to justify their utility. Thus, if we take two such systems of law for our basis of observation and note the distinctions and principles which they have in common, this is so good a guarantee of their permanent utility that we may adopt them into our system of Jurisprudence. But it must be noticed that this system is no longer particular but general ; more or less general indeed, according to the area of observation, but still general as opposed to particular. Moreover, having once arrived at a system of General Jurisprudence, it is impossible to go back to a system of Particular Jurisprudence ; the former is an easier and more satisfactory way of arriving at the results of the latter.

12 THE NATURE OF POSITIVE LAW. Li

This, indeed, I apprehend is the meaning of Professor Holland when in the following words he summarily dismisses Particular Jurisprudence : —

The wider the field of observation the greater of course will be the chance of the principles of a science being rightly and completely enunciated ; but, so far as they are scientific truths at all, they are always general and of universal application.^

The case, then, is simply this, that when the method of General Jurisprudence has once been introduced, no one would dream of going back to the method of Particular Jurisprudence. We shall still have to consider what was the meaning which Austin probably attached to the phrase.

So far I have spoken of distinctions and principles which are to be found in at least several systems of law ; but there are certain ideas of a more abstract nature still which deserve special treatment. They are the ideas upon which all Law is founded and the distinctions which lie at the very root of its arrangement. These are enumerated by Austin (ii. 1108), and are said to be the special matter of General Jurisprudence. We may mention among them the ideas of Law, Eight, and Duty ; the division of Eights into Property and Obligation ; and the chief distinctions of each of the latter. These he asserts to be necessary parts of every system of law, and then goes on to say : —

Of the principles, notions, and distinctions which are the subjects of General Jurisprudence, others are not necessary (in the sense which I have given to the expression). We may

1 Jurisprudence, p. 9.

I] JURISPRUDBKCE AS A SCIENCE. 13

imagine coherently an expanded system of law, without conceiving them as constituent parts of it. But as they rest upon grounds of utility which extend through all communities, and which are palpable and obvious in all refined communities, they, in fact, occur very generally in matured systems of law; and therefore may be ranked properly with the general principles which are the subjects of general jurisprudence.^

We thus see that Austin makes a distinction between those subjects which are necessarily found in all systems of law, and those which, as a matter of fact, are usually found there, and this distinction really corresponds to two divisions of the subject. The ideas and distinctions which are enumerated above are those with which Austin especially deals, and as they constitute the basis upon which the Science of Jurisprudence is founded, they may not improperly be set apart for separate treatment.

If now we turn to Professor Holland's work, we find that this, covering Austin's ground and also much besides, is called by its author General Jurisprudence. Another authority, too. Professor Pollock, recommends that part, at least, of what is peculiar to Austin should be dropped. He says : —

The two chapters on the various usages of the word law might perhaps bear to be yet further shortened ; I should doubt, indeed, whether their subject is properly within the scope of jurisprudence.^

Why should we not reconcile these conflicting authorities by recognising two departments, the Pure and the General? This will perhaps appear more plausible after the following considerations.

I have said tliat Professor Holland sets down Jurisprudence as the formal science of Positive Law ; and Professor Pollock has pointed out how he really leaves this ground and undertakes in places the exposition of actual English law. He then says that Jurisprudence must always vacillate between two extremes ; it is to be a mere theory of legal classification, a catalogue of blank forms ; or if it undertakes to illustrate these blank forms, it will tend to become an exposition of some particular system.'^ But the real mistake, I think, has been in stating that Jurisprudence is merely a formal science. Pure Jurisprudence, as I have defined it, may be a formal science, but General Jurisprudence certainly is not. Its object is not only to arrive at general distinctions, but at general principles. ■ Thus prescription is a means of acquiring property both in EngHsh and in Eoman law. This, then, is properly pointed out in General Jurisprudence, and its meaning explained ; the actual number of years, however, required for prescription is not touched upon. But Jurisprudence does not stop here. Austin says that Particular Jurisprudence is the only practical Jurisprudence.'-^ I have, indeed, already pointed out that this is a form of the science incidental to its early stages, and to which it is impossible to return. What, then, is really the department of mature Jurisprudence which corresponds to itl This wdll be clear if we remember that, as Professor Pollock says, the best way of showing the value of Jurisprudence is to exhibit its application to a particular system of law. This