anachronistic, and will create new principles that will force their recognition upon the legislatures and courts. Scientific commentaries and text-books will continue their influence, and courts, too, of necessity, will never be freed from the task of producing judge-made law. All statutory law, from its formal and definite statement, is rigid in character, and, in its application to changing conditions, must be softened by the judge, if the sense of justice be not outraged.

In the development of law, custom is the conservative element, legislative enactment the radical. The task of the true statesman is to give to both of these elements their due importance. It was the great merit of the work of Savigny that he showed that the task of the legislator should be largely limited to the statutory confirmation of principles that common usage has already established, rather than the invention of laws according to individual caprice or judgment. As Count Portalis has expressed it, "the legislature should not invent law, but only write it."

At the same time, however, it is undoubtedly true, that there should be, especially in these modern times, a more active principle than this in legislation. The opportunities enjoyed by legislatures should be used for the creation of rules that custom cannot supply. The necessity often arises, also, for the release of society from rules which custom has itself created, but which no longer comport with the best interests of all. This is an element that Savigny did not sufficiently

recognize. The civilization of the East, and especially of the Chinese Empire, testifies to the result of the rigid reign of custom. Thus, says Bluntschli, in commenting upon the work of Savigny: "While it may be true that the present rests upon the past and cannot be entirely separated from it, yet it is none the less true that the forms of different ages are variable, and out of the depths of Man's nature, and brought forth by the mutations in the spirit of the ages, new forms are created. The critical examination of the past is necessary in order to discover the grounds upon which we rest, but the consideration of the future is none the less necessary in order to determine whither we are going. All law (Recht) is truly of the present; the past is no more, except in so far as its forces continue to operate in the present; and the future is not yet, except in so far as it is already a condition in the present. The present is therefore a union of the past and future. It alone is real. There is something that is often not sufficiently recognized by the historical school."1

In our day, however, the danger seems to be that our legislatures will go to the other extreme, and give expression to that spirit of innovation which, acting without reference to the past, or sufficient consideration for the future, seems to characterize popular bodies. The dictates of prudence and the feelings of personal responsibility that restrain the monarch from too hasty action are both wanting in a large representative assembly. The responsibility in case 1 Geschichte der neueren Staatswissenschaft, p. 625.

of ill success, when distributed among a large number, is reduced to a minimum, and, at the same time, the feeling on the part of such a body that it represents in itself the entire nation, gives to it a feeling of power that is necessarily intoxicating.

CHAPTER VIII

ANALYTICAL JURISPRUDENCE

In the beginning of the last chapter we spoke of two ways in which one may approach the examination of law first, by a historical inquiry into the manner in which legal principles have arisen; and, secondly, by an analysis of these rules as they now exist, and a classification of them according to their forms of expression, their comparative validity, and their method of ascertainment and enforcement. have just considered the results to be obtained from the first method. Armed with them, we are now prepared for an intelligent and comprehensive estimate of the results to be obtained from the second, or analytical method.

We

First of all, it is to be remarked, we are no longer concerned with the moral obligation of the individual to yield obedience to the rules of conduct that obtain in the political community of which he is a member, but have to do solely and simply with the question of how those rules have obtained their coercive force.

The ambiguity which attaches to the word "law" makes it necessary to distinguish carefully the sense in which the word will be here used. As opposed to that use of the word which causes it to be applied

to the sequence of cause and effect in the empiric universe, and thus to indicate an inevitable result that necessarily follows from given conditions — a necessity arising from an undiscoverable first cause, and independent of the will of mankind—it will be here used as expressing a rule of human action and indicating a principle of conduct which shall govern the actions of men for the attainment of certain ends. The characteristic of a law in this sense, is that it is capable of being expressed as a distinct proposition to rational beings. Furthermore, it is a command. That is, it is not merely a statement of advice, but an expression of the will of one who has the power to enforce it in case of disobedience. Thus, then, in a general sense, all rules of human conduct are defined as being " propositions commanding the doing, or abstaining from, certain classes of actions; disobedience to which is followed, or is likely to be followed, by some sort of penalty or inconvenience." 1

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Continuing the examination of the nature of laws as thus stated, we have yet to classify them according to the nature of the one by whose will they are stated, and the character of the sanction by which enforced. According to the character of the lawgiver they are of two kinds: first, laws set by God to man, which may be revealed or unrevealed; and second, laws set by men to men. As regards the character of the sanction applied, they may affect either the moral or physical side of man.

1 Holland, Elements of Jurisprudence, 6th ed. p. 21.

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