in accordance with the dictates of which it is thought proper to leave to the will of the Judge, not only the decision of each case, but also the determination of the rule to be followed in it. In such a system the essentials and the logical limits of the judicial function are entirely misconceived; limits which in the modern State perform also the function of a fundamental guarantee of liberty. The improper use of words should not lead one into error; the pretence of "liberty in the application of Right" would effectively constitute, besides a theoretical paralogism, a permanent danger to the legal liberty of the citizen, which has as one of its principal conditions the certainty of Right, and especially, the unshaken sovereignty of the law.

This, of course, is not equivalent to saying that the Judge ought to turn himself into a blind instrument for the mechanical application of Right. In so far as he should oppose himself to such a conception the freirechtliche Bewegung would be fully justified. Nobody can be ignorant that the interpretation of Right, and especially that which is required of the Judge, is a genuine and original consideration of it, that supposes a deep aptitude for it, while it profits by all suggestions evoked by the ever new relations which arise. This judicial interpretation is a subordinate element, but a necessary one for the full development of the system in force; it excites, like heaven, its ideal and hidden powers, and discovers often in ancient laws meanings which their authors could not have explored. But though the logical foundations of the system and the organic unity of its structure remain unchanged by the interpreter, still within these limits the system receives new and fruitful increases in the course of its application.

Thus by degrees the natural human vocation for Right becomes historically determined and verified; the common necessities, sunk so to speak in our spirit, are translated, in the words of Vico, into "maxims witnessed by Justice;" and the maxims formulated in universal categories descend to an infinite series of contingencies, they submit and adhere to the particular cases. The whole system regarded in its entirety does not admit of any sharp divisions, nor does it undergo change ex abrupto; but a continual organic process of elaboration permits of its progressive renewal, which can never be interrupted, unless by an interruption of life itself. It so happens that a juridical idea may have to be

defended for centuries, before finding its place among positive ordinances; whether that event happens by express determination, when the idea has acquired sufficient historical force, or whether it begins by informing, perhaps unnoticed, the practice through separate cases of its application.

Now, if the process which leads to the imparting of a "positive" quality to Right on the stage of historic fact is of this nature; if, dealing with such a thing as a process or an empirical turning point, it is not possible to establish a priori the moment at which a legal idea becomes positive, nor that in which it ceases to be such; to us it seems clear that the quality of "positiveness" cannot possibly be regarded as essential to or immanent in the idea itself, but should rather be regarded as an extrinsic and accidental element. The facts or the series of facts that render a juridical determination "positive," do not make it at the same time juridical; since this latter property is not historical, but purely logical, and in this sense is above the changes and lapse of time. What ever may be the degree of social force which sustains it-whether or no enduring for a cretain predominant time, whether affirmed by some individual only or by many, a legal proposition retains its own characteristic meaning; that is, it remains a legal proposition; if not, then in order to discover in it such a character it is necessary first to make sure of the application which it may have had at some particular moment or other of history!

What are the logical elements that properly constitute the juridical character, has been incidentally mentioned already, and may here be briefly summed up.

Among the forms of evaluation and determination of conduct, there must necessarily be one which concerns the actions of a multiplicity of persons so far as they meet and intermingle with each other. In other words, a criterion must be established, according to which an objective scheme may be deduced some system of reciprocal compatibility and accommodation between the persons concerned; without which no ethic would be possible, or at least satisfactory, since human conduct would remain undefined and amorphous in one of its most fundamental aspects. Right is precisely this criterion, which values and defines in an objective or correlative sense the conduct of several persons. It does not take into consideration the activities of anyone except in

so far as it has relations with the activities of others; it does not regulate the conduct of the individual uti singulus, but only of the socius. Every predicate that is juridical is, therefore, trans-subjective and two-sided, implying a condition of alterity, a limit and relation between a multiplicity of people. This relation, however various may be the contents of it, has always the formal consequence that what is recognized as permitted on one side cannot be prevented by the other. Legality is similarly an effective claim of respect, to which corresponds an analogous obligation; and upon this rigorous correspondence between the terms of the relation its legal nature depends.

Any proposition which satisfies this formula, that is, the existence of such an inter-subjective relation, has without doubt the character of Right. Whence results the identity, and, at the same time, the changeableness of Right; since infinite propositions are possible according to the same logical species, as history itself, in almost continuous examples, makes evident. But not all juridical propositions have been historically verified, and those which have been verified with one people, have not always been verified with others; those which ruled in a certain age frequently fell away in a following epoch. Positivity is then an episode that may take place, and will certainly take place, in respect of juridical ideas which so far have not been effected; while many which at present are in force will come to an end.

To consider as a right only what seems "positive" to us would lead us logically to deny the juridical character of all the systems that have not reached such an empirical phase, or that have passed it. For that matter (for instance) in so far as the Right created by Roman law has ceased to be "positive," so far would it have ceased to be Right! Again, the nature of juridical rules (for instance, projects of laws) that are being elaborated in place of, or in addition to those in force, would be misconceived; and they would be ascribed to some other indeterminate category, until the instant of their appearance in actual force. In short, one would arrive at the absurdity of making the intrinsic sense of a maxim depend upon the extrinsic and accidental fact of its approbation and observance.

Those who accept the doctrine of the essentially positive character of Right are accustomed to point out this characteristic as a criterion of distinction between Right and

morals. But it is exactly this application of the doctrine, which, if it were true, would have supreme importance, which shews instead its irremediable want of foundation. Because morals themselves have also a historical and positive existence; and the problem, whether they have this existence alone or have also a metempirical character, arises in their case not less than in that of Right. He who affirms-for example, with Ahrens-that morality is absolute and invariable, but Right relative to time and place, commits, in our opinion, a twofold error; since, on the one side, he forgets that the principle of historical relativeness is applicable to moral, in the same manner as to juridical, phenomenology, and, on the other hand, disregards the fact that a moral absolute is not possible without a corresponding juridical absolute.

That all Peoples have their own "positive morality" in harmony with their own system of Right, and therefore, subject to an analogous development, is a truth which stands in no need of demonstration, especially after modern investigations into this subject. In reality, both kinds of determination have a meeting ground, and are compounded into a concrete ethical organism or regulating system, which is precisely the product and the historical exponent of the predominating convictions regarding modes and ends of conduct. The rules of both the one and the other species have, however, differing characters, inasmuch as they correspond to the two fundamental points of view according to which conduct is capable of being regarded. Right concerns, as we have said, the objective ordering of activities, and affirms itself where a collision between the actions of several persons is possible, marking the limits of their respective effective claims. But morality furnishes a rule in another sense, and tends to resolve the clashing between two different actions which one and the same person can carry out. Moral precepts are therefore subjective or one-sided, since, even if they have also a relation to other persons, they really determine only the conduct of him who ought to execute them; while juridical precepts are essentially objective or two-sided, because they signify always a correlative determination of the conduct of a multiplicity of persons. From this different logical nature of the one and the other category, follows the difference which we find in their expressions and sanctions; that is, in the varying manner in which the juridical and the

moral rules make their force felt, even when it is in the same manner that they are recognized and observed. Such difference cannot, however, prevent us from recognizing that there is in every human society a morality in force, which reveals itself in custom, and is historical and relative, like the Right which springs from and is developed along with it.

No distinctive criterion is then afforded by the mere fact of "positiveness," unless from that we ascend to the intrinsic meaning of the rules set or followed. Considering this meaning, we perceive that Right and morality have, although each in its own way, a mode of existing- or rather of appearing in the sphere of experience; but in themselves, as forms of evaluation of work, they are both ranked above this sphere, and denote a duty to be a deontological exigency. Thus, then, both morality and Right express, if at different visual angles, an ideal of conduct that can be violated physically, without on that account ceasing to have its value as ideal.

No one doubts that, in a given system, the legal rule remains such, whether in fact infringed by some or not. The transgression falls logically under the rule, and does not destroy it; right violated withdraws itself from the action of violence-Rosmini has well remarked-like an immortal existence, inaccessible to all material power, which does not succeed as much as in touching it. In this hyperphenomenal value resides properly the truth of Right, which, analogously to that of morality, does not depend on facts, but rather tends to impose itself on them; whence neither can it be limited by the institutions actually in vigour, of whatever kind they may be; rather it sets its affirmations naturally beyond these, and sometimes against them. This same positive Right, inasmuch as it represents a reality of fact, is subjected to an evaluation sub specie juris. that is. it is liable to be referred to a criterion of justice, independent of every historical sanction. This criterion persists in the human conscience, and is one and uniform in its principles, on which it proceeds gradually to unfold itself. Though the juridical vocation of the conscience is reflected in the institutions which succeed each other in history, still it is not exhausted. Nay, the development of these institutions would not be possible if no new Right could ever be opposed to that already established; that is, there would not exist that natural jurisdiction which the conscience exercises in an autonomous