Critiques of John Austin's Positions on Jurisprudence
Passing from these, we may now consider what has been said against the theory, which may be summed up in the following terms. Laws, no matter in what form they be expressed, are in the last resort reducible to commands set by the person or body of persons who are in fact sovereigns in any independent political society. The sovereign is the person or persons whose commands are habitually obeyed by the great bulk of the community ;and by an independent society we mean that such sovereign head is not himself habitually obedient to any other determinate body of persons. The society must be sufficiently numerous to be considerable before we can speak of it as a political society. From command, with its inseparable incident of sanction, come the duties and rights in terms of which laws are for the most part expressed. Duty means that the person of whom it is predicated is liable to the sanction in case he fails to obey the command. Right means that the person of whom it is predicated may set the sanction in operation in case the command be disobeyed.
Before noticing the considerable body of hostile criticism with which in the main we are unable to agree, we may here interpolate a doubt whether the condition of independence on the part of the head of a community is essential to the legal analysis. It seems to us that we have all the elements of a true law present when we point to a community habitually obedient to the authority of a person or determinate body of persons, no matter what the relations of that superior may be to any external or superior power. Provided that in fact that commands of the lawgiver are those beyond which the community never looks, it seems immaterial to inquire whether this lawgiver in turn takes his orders from somebody else or habitually obedient to such orders when given. One may imagine a community governed by a dependent legislatorial body or person, while the supreme sovereign whose representative and nominee such body person may be never directly addresses the community at all. We do not see that in such a case anything is gained in clearness by representing the law of the community as set by the suzerain, rather than the dependent legislator. Nor is the ascertainment of the ultimate seat of power necessary to define political societies. That we get when we suppose a community to be in the habit of obedience to a person or to a determinate combination of persons.
The use of the word "command" is not unlikely to lead to a misconception of Austins meaning. When we say that a law is a command of the sovereign, we are apt to think of the sovereign as enunciating the rule in question for the first time. Many laws are not traceable to the sovereign at all in this sense. Some are based upon immemorial practices, some can be traced to the influence of private citizens, whether practising lawyers or writers on law, and in most countries a west body of law owes its existence as such to the fact that it has been observed as law in some other society. The great bulk of modern law owes its existence and its shape ultimately to the labours of the Roman lawyers of the empire. Austins definition has nothing to do with this, the historical origin of laws. Most books dealing with law in the abstract generalize the modes in which laws may be originated under the name of the "sources" of law, and one of these is legislation, or the direct command of the sovereign body. The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the establishment of the general laws governing the evolution of the law in the technical sense. Austins definition looks, not to the authorship of the law as a principle, not to its investor or originator, but to the person or persons who in the last resort cause it to obeyed. If a given rule is enforced by the sovereign it is a law.
It may be convenient to notice here what is usually said about the sources of law, as the expression sometimes proves a stumbling-block to the appreciation of Austins system. IN the corpus juris of any given country only portion of the laws is traceable to the direct expression of his commands by the sovereign. Legislation is one, but only one, of the sources of law. Other portions of the law may be traceable to other sources, which may very in effect in different systems. The list given in the Institutes of Justinian of the ways in which law may be madelex, plebiscitum, principis placita, edicta magistratuum, and so onis a list of sources. Among the sources of law other than legislation which are most commonly exemplified are the laws made by judges in the course of judicial decisions, and law originating as custom. The source of the law in the one case is the judicial decision, in the other the custom. In consequence of the decisions and in consequence of the custom the rule has prevailed. English law is largely made up of principles derived in each of these ways, while it is deficient in principles derived from the writings of independent teachers, such as have in other systems exercised a powerful influence on the development of law. The responsa prudentum, the opinions of learned men, published as such, did undoubtedly originate an immense portion of Roman law. No such influence has affected English law to any appreciable extenta result owing to the activity of the courts of the legislature. This difference has profoundly affected the form of English law as compared with that of systems which have been developed by the play of free discussion. These are the most definite of the influence to which the beginning of laws may be traced. The law once established, no matter how, is nevertheless law in the sense of Austins definition. It is enforced by the sovereign authority. It was originated by something very different. But when we speak of it as a command we think only of the way in which it is to-day presented to the subject. The newest order of an Act of Parliament is not more positively presented to the people as a command to be obeyed than are the elementary rules of the common law for which no legislative origin can be traced. It is not even necessary to resort to the figure of speech by which alone, according to Sir Henry Maine (Early History of Institutions, p.314), the common law can be regarded as the commands of the Government. "The common law," he says, "consists of their commands because they can repeal or alter or restate it at pleasure." "They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment." On the contrary, it may be said that they command because they do as a matter of fact enforce the rules laid down in the common law. It is not because they could innovate if they pleased in the common law that they are said to command it, but because it is known that they will enforce it as it stands.
The criticism of Austins analysis resolved itself into two different sets of objections. One relates to the theory of sovereignty which underlies it; the other to its alleged failure to include rules which in common parlance are laws, and which it is felt ought to be included in any satisfactory definition of law. As the latter is to some extent anticipated and admitted by Austin himself, we may deal with it first.
A recent writer (FOOTNOTE 357-1) has been at great pains to collect a number of laws or rules of law which do not square with the Austinian definition of law as a command creating rights and duties. Take the rule that "every will must be in writing." It is a very circuitous way of looking at things, according to Mr Harrison, to say that such a rule creates a specific right in any determinate person of a definite description. So, again, the rule that "a legacy to the witness of a will is void." Such a rule is not "designed to give any one any rights, but simply to protect the public against wills made under undue influence." Again, the technical rule in Shelleys case that a gift to A for life, followed by a gift to the heirs of A, is a gift to A in fee simple, is pornounced to be with the definition. It is an idle waste of ingenuity to force any of these rules into a form in which they might be said to create rights.
This would be a perfectly correct description of any attempt to take any of these rules separately and analyse it into a complete command creating specific rights and duties. But there is no occasion for doing anything of that kind. It is not contended that every grammatically complete sentence in a text-book or a statute is per se a command creating rights and duties. A law, like any other command, must be expressed in words, and will require the use of the usual aids to expression. The gist of it may be expressed in a sentence which, standing by itself is not intelligible ; other sentences locally separate from the principal one way contain the exceptions and the modifications and the interpretations to which that is subjects. In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austins sense, to be found. Thus the rule that every will must be in writing is a mere fragmentonly the limb of a law. It belongs to the rule which fixes the rights of devisees or legatees under a will. The rule in whatever form it may be expressed is, expressed is, without any straining of language, a command of the legislator. That "every person named by a testator in his last will and testament shall be entitled to the property thereby given him" is surely a command creating rights and duties. After testament add "expressed in writings" ; it is still a command. Add further, "provided he be not one of the witnesses to the will," and the command, with its product of rights and duties, is still there. Each of the addition limits the operation of the command stated imperatively in the first sentence. So with the rule in Shelleys case. It is resolvable into the rule that every person to whom an estate is given by a conveyance expressed in such and such a way shall take such and such rights. To take in 1881 enacts nothing more than this, that an Act of a previous session shall be contrued as if "that meant "this." It would be futile indeed to force this into conformity with Austins definition by treating it as a command addressed to the judges, and as indirectly creating rights to have such a construction respected. As it happens, the section of the previous Act referred to (the Burials Act, 1880) is an undeniable command, addressed to the clergy, and imposing upon them a specific duty. The true command -- thelaw -- is to be found in the two sections taken together.
All this confusions arises from the fact that laws are not habitually expressed in imperative terms. Event in a mature system like that of England the great bulk of legal rules is hidden forms which disguise their imperative quality. They appear as principles, maxims, propositions of fact, generalizations, points of pleading and procedure, and so forth. Even in the statutes the imperative form in is not uniformly observed. It might be said that the more mature a legal system is the less do its individual rules take the form of commands. The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises. The institutional works abound in propositions which have no legal significance at all, but which are not distinguished from the true law in which they are embedded by any difference in the forms of expression. Assertions about matters of history, dubious speculations in philology, and reflexions on human conduct are mixed up in the same narrative with genuine rules of law. Words of description are used, not words of command, and rules of law assimilate themselves in form to the extraneous matter with which they are mixed up.
It has been said that Austin himself admitted to some extent the force of these objections. He includes among laws which are not imperative the following :the "declaratory, and laws abrogating or repealing existing positive law." He thus associates them with rules of positive morality and with laws which are only metaphorically so called. This collocation is unfortunate and out of keeping with Austins method. Declaratory and repealing laws are as completely unlike positive morality and metaphorical laws as are the laws which he describes as properly so called. And if we avoid the error of treating each separate proposition enunciated by lawgiver as a law, the cases in question need give us no trouble. Read the declaratory and the repealing statutes along with the principal laws which they affect, and the result is perfectly consistent with the proposition that all law is to be resolved into a species of command. In the one case we have in the principal taken together with the interpretative stature a law, and whether it differs or not from the law as it existed before the interpretative statute was passed makes no difference to the true character of the latter. It contributes along with the former to the expression of a command which is a true law. In the same way repealing statutes are to be taken together with the laws which they repealthe result being that there is no law, no command, at all. It is wholly unnecessary to class them as laws which are not truly imperative, or as exceptions to the rule that laws are a species of commands. The combination of the two sentences in which the lawgiver has expressed himself, yields the result of silenceabsence of lawwhich is in no way incompatible with the assertion that a law, when it exists, is a kind of command. Austins theory does not logically require us to treat every Act of Parliament as being a complete law in itself, and therefore to set aside a certain number of Acts of Parliament as being exceptions to the great generalization which is the basis of the whole system.
Rules of procedure again have been alleged to constitute another exception. They cannot, it is said, be regarded as commands involving punishment if they be disobeyed. Nor is anything gained by considering them as commands addressed to the judge and other minister of the law. There may be no doubt in the law of procedure a great deal that is resolvable into law in this sense, but the great bulk of it is to be regarded like the rules of interpretation as entering into the substantive commands which are laws. They are descriptions of the sanction and its mode of working. The bare prohibition of murder with out any penalty to enforce it would not be a law. To prohibit it under penalty of death implies a reference to the whole machinery of criminal justice by which the penalty is enforced. Taken by themselves, the rules of procedure are not, any more than canons of interpretation, complete laws in Austins sense of the terms. But they form part of the complete expression of true laws. They imply a command, and they describe the sanction and the mode in which it operates.
A more formidable criticism of Austins position is that which attacks the definition of sovereignty. There are countries, it is said, where the sovereign authority cannot by any stretch of language be said to command the laws, and yet where law manifestly exist. The ablest and the most moderate statement this view is given by Sir Henry Maine in Early History of Institutions, p. 380 :
"It is from no special love of modern examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian province called the Punjab, the country of the Five Rivers, in the state in which it was for about a quarter of a century before its annexion to the British India empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half military half religious oligarchy known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier he kept the most perfect order. He could have commanded anything ; the smallest disobedience to this commands would have been followed by death or mutilation; and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took as his revenue a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies ; he had all material of power, and he exercised it in various ways. But he never made a law. The rules which regulated the lives of his subjects were derived from their immemorial usages, and those rules were administered by domestic tribunals in families or villages communitiesthat is, in groups no larger or little larger than those to which the application of Austins principles cannot be effected on his own admission without absurdity."
So far as the mere size of the community is concerned, there is no difficulty in applying the Austinian theory. In postulating a considerably numerous community Austin was thinking evidently of small isolated groups which could not without provoking a sense of the ridiculous be termed nations. Two or three families, let us suppose occupying a small island, totally disconnected with any great power, would not claim to be and would not be treated as an independent political community. But it does not follow that Austin would have regarded the village communities spoken of by Maine in the same light. Here we have a great community, consisting of a vast number of small communities, each independent of the other, and disconnected with all the others, so far as the administration of anything like law is concerned. Suppose in each case that the headman or council takes his orders from Runjeet Singh, and enforces them in his own sphere, relying as the last resort the force a the disposal of the suzerain. The mere size of the separate communities would make no sort of difference to Austins theory. He would probably regard the empire of Runjeet Singh as divided into small districtsan assumption which inverts no doubt the true historical order, the smaller group being generally more ancient than the larger. But provided that the other conditions prevail, the mere fact that the law is administered by local tribunals for minute areas should make no difference to the theory. The case described by Sir Henry Maine is that of the undoubted possession of supreme power by a sovereign, coupled with the total absence of any attempt on his part to originate a law. That no doubt is, as we are told by the same authority, "the type of al Oriental communities in their native state during their rare intervals of peace and order." He empire was in the main in each case a tax-gathering empire. The unalterable law of the Medes and Persians was not a law at all but an occasional command. So again Maine puts his position clearly in the following sentences :"The Athenian assembly made true laws for residents on Attica territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating empire." Sir Henry Maine, it will be observed, does not say that the sovereign assembly did not command the laws in the subject islandsonly that it did not legislate.
In the same category may be placed without much substantial difference all the societies that have ever existed on the face of the earth previous to the point at which legislation becomes active. Sir Henry Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And formal legislation, as he has elsewhere shown, comes late in the history of most legal, systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent Governments have up to a certain point left the law to grow by other means than formal enactments. What is ex facie more opposed to the idea of a sovereigns commands that the conception of schools of law? Does it not "sting us with a sense of the ridiculous" to hear principles which are the outcome of long debates between Proculians and Sabinians described as commands of the emperor? How is sectarianism in law possible if ht e sovereigns command is really all that is meant by a law? No mental attitude is more common than that which regards law as a natural productdiscoverable by a diligent investigator, much in the same way as the facts of science or the principles of mathematics. The introductory portions of Justinians Institutes are certainly written from this point of view, which may also be described without much unfairness as the point of view of German jurisprudence. And yet the English systems our own day wold have no difficulty in applying it ot German or Roman law generated under the influence of such ideas as these.
Again, referring to the instance of Runjeet Singh, Sir H. Maine says no doubt rightly that "he never did or could have dreamed of changing the civil rules under which his subjects lived. Probably he was as strong a believer in the independent obligatory force of such rules as the elders themselves who applied them." That to might be said with truth o states to which the application of Austins system would be far from difficult. The sovereign body or person enforcing the rules by all the ordinary methods of justice might conceivably believe that the rules with he enforced had an obligatory authority of their own just as most lawyers at one time, and possible some lawyers now, believe in the natural obligatoriness, independently of courts or parliaments, of portions of the law of England. But nevertheless whatever ides the sovereign or his delegates might entertain as to "the independent obligatory force" of the rules which they enforce, the fact that they do enforce them distinguishes them from all other rules. Austin seizes upon this peculiarly and fixes it as the determining characteristic of positive law. When the rule is enforced by a sovereign authority as he defines it, it is his command even if he should never so regard it himself, or should suppose himself to be unable to alter it in a single particular.
It may be instructive to add to these examples of dubious cases one taken from what is called ecclesiastical law. In so far as this has nt been adopted and enforced by the state, it would, on Austins theory, be, not positive law, but either positive morality or possibly a portion of the Divine law. No jurist would deny that there is an essential difference between so much ecclesiastical law as is adopted by the state and all the rest of it, and that for scientific purposes this distinction ought to be recognized. How near this kind of law approaches to the positive or political law may be seen from the sanctions on which it depended. "The theory of penitential disciple was this : that the church was an organized body with an cutward and visible form of government ; that all who were outside her boundaries were outside the means of divine grace ; that she had command laid upon her, and authority given to her, to gather men into her fellowship by the ceremony of baptism, but, as some of those who were admitted proved unworthy of their calling, she also had the right by the power of the keys to deprive them temporarily or absolutely of the privilege of communion with her, and on their amendment to restore them once more to church membership. On this power of exclusion and restoration was founded the system of ecclesiastical discipline. It was a purely spiritual jurisdiction. It obtained its hold over the minds of men form the belief, universal in the catholic church of the early ages that he who was expelled from her pale was also from the way of salvation, and that the sentence which was pronounce by Gods church on earth was ratified by Him in heaven" (Smiths Dictionary of Christian Antiquities, art. "Penitence," p. 1587).
These laws are not the laws of the jurists, though they resemble them closely in many pointsindeed in all points except that of the sanction by which they are enforced. It is a spiritual not a political sanction. The force which lies behind them is not that of the sovereign or the state. When physical fore is used to compel obedience to the laws of the church they become positive laws. But sot long as the belief in future punishments or the fear of the purely spiritual punishments of the church is sufficient to procure obedience to them, they are to be regarded as commands, not by the state, but by the church. That difference Austin makes essential. In rejecting spiritual law from the field of positive law, his example would be followed by jurists who would nevertheless include other laws, not ecclesiastical in purpose, but enforced by very similar methods.
Compare the following account of "the mode in which justice was administered in the neighbourhood of Benares towards the end of the last century," extracted from a very valuable work on the scientific study of Hindu law by Mr. J. H Nelson. "The recognized mode of compelling a debtor to pay up appear to have been by sending a Brahman to do dharna before his house with a dagger or a bowl of poison to be used by the Brahman of his own body if the debtor proved obstinate. When the tax collector gave too much trouble, a ryot would sometimes erect a koor or pile of wood and burn an old woman on it by way of bringing sin on the head of the tormentor. The lex talionis obtained in the following shape. Persons who considered themselves aggrieved by acts of
their enemies would kill their own wives and children, in order, as we may supposed, to compel their enemies to do a similar act to their own hurt. Thus two Brahmans cut off their mothers head to spite a foe." The same author states that he is "firmly persuaded that the normal condition of India has ever been to be without what Europeans understand by laws courts."
So far as the question is one of the propriety of language, the burden in this case is decidedly against those who would extend the phraseology of law to such rules as these. Can we with any advantage speak of one person having a right against another, when his remedy consists in starving himself in order to bring sin upon the head of his opponent or compel him to do likewise? If dharna or anything like it suffices to keep a community to its customary practices, is it possible to express such customs in terms applicable to the laws of European societies? Or is any harm done by saying that the difference between the two is so great that the former cannot be regarded as positive laws at all?
The true criterion in all these cases is, neglecting the shape and circumstances in which the rules in question may have appeared, to ask by what means compliance with them is enforced. Austins theory in the end comes to this, that true laws are in all cases obeyed in consequence of the application of regulated physical force by some portion of the community. That is a fair paraphrase of the position that laws are the commands of the sovereign, and is perhaps less objectionable inasmuch as it does not imply or suggest anything about the forms in which laws are enunciated. All rules, customs, practices, and lawsor by whatever name these uniformities of human conduct may be calledhave either this kind of force at their back or they have not. Is it worth while to make this difference the basis of a scientific system or not? Apparently it is. If it were a question of distinguishing between the law of the law courts and the laws of fashion no one would hesitate. Why should laws or rules having no support from any political authority be termed laws positive merely because there are no other rules in the society having such support?
The question may perhaps be summed up as follows. Austins definition are n strict accordance with the facts of government in civilized states ; and, as it is put by Sir H. Maine, certain assumption or postulates having been made, the great majority of Austinsposition follow as of course or by ordinary logical process. But at the other extreme end of the scale of civilization are societies to which Austin himself refuses to apply his system, and where, it would be conceded on all sides, there is neither political community nor sovereign nor lawnone of the facts which jurisprudence assumes to exist. There is an intermediate stage of society in which, while the rules of conduct might and generally would be spoken of as laws, it is difficult to trace the connexion between them and the sovereign authority whose existence is necessary to Austins system. Are such societies to be thrown out of account in analytical jurisprudence, or is Austins system to be regarded as only a partial explanation of the field of true law, and his definitions good only for the laws of a portion of the world? The true answer to this appears to be that when the rules in any given case are habitually enforced by physical penalties, administered by a determinate person or portion of the community, they should be regarded as positive laws an the appropriate subject matter of jurisprudence. Rules which are not so enforced, but are enforced in any other way, whether by what is called public opinion, or spiritual apprehensions, or natural instinct, are rightly excluded from that subject matter. In all stages of society, savage or civilized, a large body of rules of conduct, habitually obeyed, are nevertheless not enforced by any state sanction of any kind. Austins method assimilates such rules in primitive society, where they subserve the same purpose as positive laws in an advanced society, not to the positive laws which they resemble in purpose but to the moral or other rules which they resemble in operation. If we refuse to accept this position we must abandon the attempt to frame a general definition of law and its dependent terms, or we must content ourselves with saying that law is one thing in one state of society and another thing in another. On the ground of clearness and convenience Austins method is we believe, substantially right, but none the less should the student of jurisprudence be on guard against such assumptions as that legislation is a universal phenomenon, or that the relation of sovereign and subject is discernible in all states of human society. And a careful examination of Sir Henry Maines criticism will show that it is devotd not so much to a rectification of Austins position as to correction of the misconceptions into which some of his disciples may have fallen. It is a misconception of the analysis to suppose that it involves a difference in juridical character between custom not yet recognized by any judicial decision and custom after such recognition. There is no such difference except in the case of what is properly called "judicial legislation"wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well under stood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is involved. The fact that no previous instance of its recognition by a court of justice can be produced is not material. A lawyer before any such decision was given would nevertheless pronounce the custom to be law,with more or less hesitation according as the marks of a legal custom were obvious or not. The character of the custom is not changes when it is for the first time enforced by a court of justice, and hence the language used by Sir Henry Maine must be understood in a very limited sense. "Until customs are enforced by courts of justice"so he puts the position of Austinthey are merely "positive morality," rules enforced by opinion ; but as soon as courts of justice enforce them they become commands of the sovereign, conveyed through the judges who are his delegates or deputies. This proposition, on Austins theory, would only be true of customs as to which these marks were absent. It is of course true that when a rule enforced only by opinion becomes for the first time enforceable by a court of justicewhich is the same thing s the first time of its being actually enforcedits juridical character is changed. It was positive morality; it is now law. So it is when that which was before the opinion of the judge only becomes by his decision a rule enforceable by courts of justice. It was not even positive morality but the opinion of an individual ; it is now law.
The most difficult of the common terms of low to define is right ; and right rather than duty is the basis of classification, it is a point of some importance. Assuming the truth of the analysis above discussed, we may go on to say that in the notion of law is involved an obligation on the part of some one, or on the part of every one, to do or forbera from doing. That obligation is duty ; what is right? Dropping the negative of forbearance, and taking duty to mean an obligation to do something, with the alternative of punishment in default, we find that duties are of two kinds. The thing to be done may have exclusive reference to a determinate person or class of persons, on whose motion or complaint the sovereign power will execute the punishment or sanction on delinquents ; or it may have no such reference, the thing being commanded, and the punishment following on disobedience, without reference, to the wish or complaint of individuals. The last are absolute duties, and the omission to do, or forbear from doing, the thing specified in the command is in general what is meant by a crime. The others are relative duties, each of them implying and relating to a right in some one else. A person has a right who may in this way set in operation the sanction provided by the state. In common thought and speech, however right appears as something a good deal more positive definite than this,as a power or faculty residing in individuals, and suggesting no so much the relative obligation as the advantage or enjoyment secured thereby to the person having the right. Mr J. S. Mill, in a valuable criticism of Austin, suggests that the definition should be so modified as to introduce the element of "advantage to the person exercising the right." But it is exceedingly difficult to frame a positive definition of right shall not introduce some turn at least as ambiguous as the word to be defined. Professor Holland defines right in general as a mans capacity of influencing the acts of another by means, not of his own strength, but of some authority or power external to himself." Diriect influence exercised by virtue of ones own strength physical or otherwise, over anothers acts, is "might" as distinguished from right. When the indirect influence is the opinion of society, we have a "moral right." When it is the force exercised by the sovereign, we have a legal right. It would be more easy, no doubt, to pick holes in this definition than to frame a better one. (FOOTNOTE 361-1)
The distinction between rights available against determinate persons and rights available against all the world, jura in personam and jura in rem, is of fundamental importance. The phrases are borrowed from the classical jurist, who used them originally to distinguish actions according as they were brought to enforce a personal obligation or to vindicate rights of properly. The owner of property has a right to the exclusive enjoyment thereof, which avails against all and sundry but not against one person more than another. The parties to a contract have rights available against each oher, and against no other person. The jus in rem is the badge of properly; the jus in personam is a mere personal claim.
That distinction in right which appear in the division of law into the law of persons and the law of things is thus stated by Austin. There are certain rights and duties, with certain capacities and incapacities, by which persons are determined to various classes. The rights, duties, &c., are the condition or status of the person ; and one person may be invested with many statues or conditions. The law of persons consists of the rights, duties, &c., constituting conditions or status ; the law is the law of things. The separation is a mere matter of convenience, but of convenience so great that the distinction is universal. Thus any given right may be exercised by persons belonging to innumerable classes. The person who has the right may be under twenty-one years of age, may have been born in a foreign state, may have been convicted of crime, may be a native of a particular country, or a member of a particular profession or trade, &c. ; and it might very well happen, with reference to any given right, that while persons in general, under the circumstances of the case, would enjoy it in the same way, a person belonging to any one of these classes would not. If belonging to any one of those classes makes a difference not to one right merely but to many, the class may conveniently be abstracted, and the variation in rights and duties dependent thereon may be separately treated under the law of persons. The personally recognized in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter. See Hollands Elements of Jurisprudence, p. 90.
The author last cited disapproved of the prominence given by Austin to this distinction, instead of that between public and private law. This, according to Professor Holland, is based on the public or private character of the persons with whom the right is connected, public persons being the state or its delegates. Austin, holding that the state cannot be said to have legal rights or duties, recognizes no such distinction. The term "public law he confines strictly to that portion of the law which is concerned with political conditions, and which ought not to be opposed to the rest of the law, but "ought to be inserted in the law of persons as one of the limbs or members of that supplemental department."
Lastly, following Austin, the main division of the law of things is into (1) primary rights with primary relative duties, (2) sanctioning rights with sanctioning duties (relative or absolute). The former exist, as it has been put, for their own sake, the latter for the sake of the former. Rights and duties arise from facts and events; and facts or events which are violations of right and duties are delicts or injuries. Right and duties which arise from delicts are remedial or sanctioning, their object being to prevent the violation of rights which do not arises from delicts.
We are inclined to agree with the view expressed by Mr F. Harrison (Fortnightly Review, vol. xxxi.), that the rearrangement of English law on the basis of a scientific classification, whether Austins or any other, would not result in advantages at all compensating for its difficulties. If anything like a real code were to be attempted, the scientific classification would be the best ; but in the absence of that, and indeed in the absence of any habit on the part of English lawyers of studying the system as a whole, the arrangement of facts does not very much matter. It is essential, however, to the abstract study of the principles of law. Scientific arrangement might also be observed of law. Scientific arrangement might also be observed with advantage in treatises affecting to give a view of the whole law, especially those which are meant for educational rather than professional uses. The only book worth naming of that kind is Blackstones Commentaries, which, in the hands of successive annotators, retains all its original defects of arrangement. It has simply been brought down to date, last condition, from every point of view but that, worse than its first. As an example of the practical application of a scientific system of classification to a complete body of law, we may point to Professor W. A Hunters elaborate Exposition of Roman Law (London, 1876).
It is impossible to present the conclusions of historical jurisprudence in anything like the same shape as those which we have been discussing. As yet historical jurisprudence is little more than a method, and its result are generalization of more or less plausibility or probability. The describing it as a philosophy. The philosophy of the history of law is all that it can yet claim to be. It resembles, and is indeed only part of, the study which is described as the philosophy of history. Its chief interest hitherto has been in the light which it has thrown upon rules of law and legal institutions which had been and are generally contemplated as positive facts merely, without reference to their history, or have been associated historically with principles and institutions not really connected with them.
357-1 Mr Frederic Harrison in the Fortnightly Review (vols. xxx., xxxi.).
361-1 In English speech mother ambiguity is happily wanting which in many languages besets the phrase expressing a "a right." The Latin "jus," the German "Recht," the Italian "diritto," and the French "droit" express, not only a right, but also law in the abstract. To indicate the distinction between "law" and "a right" the Germans are therefore obliged to resort to such phrases as "objectives" and "subjectives Recht," meaning by the forming law in the abstract, and by the latter a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman law between the "jus quod ad res" and the "jus quod ad personas attinet," devotes the first two volumes of his Commentaries to the "Rights of Persons and the Rights of Things." See Hollands Elements of Jurisprudence, p. 57.
Read the rest of this article:
Law - Table of Contents