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CHAPTER II.

THEORIES AS TO SOURCE OF LAW.

Importance of question involved, § 42. | Views of James Wilson, § 57.
Views of Socrates and Plato, § 43.

Importance of question involved.

Aristotle, § 44.

Cicero, § 45.

otius, § 46.

Herbert Spencer, § 58.

Inclination of authority is that law is the product of national conscience and need, § 59.

Hooker, Bacon, and Hobbes, Conscience is not an insulated moral

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§ 42. THE question of the origin of law is one of importance as well as of interest. Not only is the authority of law largely due to the source from which it emanates, but to that source we must often have recourse for its interpretation. If law is imputable to social contract, then we must discover what that contract is. If it is imputable to sovereign decree, then we must inquire what was the sovereign's intentions, and who such sovereign was. If, as is here maintained, it is imputable to the conscience and needs of the nation as a continuous political existence, then for the interpretation of the law we must trace the history of the nation and scrutinize the moral and political conditions under which it has grown and now exists. It is proposed, at present, briefly to notice some of the more prominent views which have been advanced in solution of this important question.

1 Infra, § 64.

Views of

and Plato.

§ 43. According to Socrates,' virtue is the basis of obedience to law, and law he classifies (1) as political, (2) as moral, and (3) as divine. Plato idealizes the law Socrates as righteousness. The soul, he holds, contains three elements (1) virtue, (2) wisdom, (3) courage, or force. In like manner the state contains three elements: the governing, the warring, and the producing. The first controls the third by aid of the second. Each member of the community has his allotted duty; and unrighteousness consists in the nonfulfilment of such duty. The state is the product of necessity, and happiness the product of law, but law to have this result must meet the wants and correspond with the views of the society from which it emanates, and which it controls. Impracticable, no doubt, are some of the conditions of this ideal state, e. g., community of goods and of families; and fatally defective is Plato's system in making knowledge of what is right and not law the basis of society; yet we cannot but feel that he has anticipated, in some respects, the views of Savigny and Burke in making the value of law to consist in its adaptation to the community it is to control, regarding it not as making, but as being made by society. It is true that he is not constant in this view, and in his essay on Law, law is sometimes regarded as the foundation of righteousness, not righteousness as the foundation of law. But even here he falls back on the great principle that law is only efficacious when in harmony with the condition of society, and, that to make righteous laws righteous, principle is the preessential.

Of Aris

totle.

§ 44. Aristotle, in his treatises on Ethics, discusses law at great length, but does not undertake to trace its origin. It is enough for him, as it is enough for Blackstone, that law should be defined as imposed by authority, without inquiring what that authority is. Happiness, he tells us, is the object of society, and happiness can only be purchased by the exercise of that virtue of which

1 In the analysis of the authorities here cited I am greatly indebted to Dr. Geyer's introductory essay in Holtzendorffs Encyclopädie, 4th ed. 1882.

2 As to Lord Mansfield's view of Socrates, see infra, § 59.

d

righteousness is an essential element. Righteousness, i. e., the performance of that which is right, consists in its larger sense in the conformity with moral as well as positive law. In a narrower sense, righteousness consists in justice, so that every man shall have his equal opportunities of happiness in the eye of the law. Distributive justice is therefore to be based on worth. It is otherwise with retributive justice. If a wrong is done, it is to be condemned irrespective of the character of the wrongdoer. In his treatise on Politics, of which only a part is preserved, Aristotle discusses the origin of the state. The insufficiency and unsatisfactoriness of a merely solitary life lead to the formation of the family; the necessities of the families to the grouping in village communities; the necessities of these communities to the building up of the state. The state, the result of necessity, is from the nature of things to be so organized as to produce happiness. He follows Plato, also, in dividing the population into an aristocracy of the intelligent and educated, who constitute the citizens, on the one side, and peasants and mechanics on the other side; the former governing the latter, but for the good of the whole. But the complicated system of laws he suggests shows that the legislation he has in view is legislation a priori, not legislation such as emanates from the sober deliberations of the people as a body. He recommends compulsory education, compulsory division of labor, compulsory checks on over accumulation and over speculation.

Of Cicero.

§ 45. Cicero, in his treatises De Legibus and De Republica, does not undertake to give a distinct scheme of his own. The jus naturale should guide in the formation of positive law, yet utilitas must prescribe numerous rules which the jus naturale would not by itself prescribe. Positive law is divided into the jus gentium, common to all nations, and the jus civile. He follows Aristotle in tracing the origin of the state to necessity, and making the object of the state to be the promotion of happiness and the establishment of virtue. This, he thinks, can be best done by a mixed system such as his ideal republic of Rome, but done it must be. In other words, law, the product of social necessity, is to regulate all action, repress all evil, and enforce all good. These opinions of Cicero were

caught up and quoted by the enthusiasts who sought in the early stages of the French Revolution to regenerate the world through a complex and exhaustive code by which, under the name of liberty, all liberty would be destroyed. Burke's sagacious criticism on this system will be hereafter given.

Of Grotius.

46. Grotius was the first great writer on the philosophy of law after the middle ages; and his work (1625), though by its title (De jure belli ac pacis) limited to international law, opens a new epoch in jurisprudence. He takes the ground, which is essential to any logical system of international law, that it is not necessary to the authority of a law that it should be imposed by legislature or prince. What is reasonable is just, and supposing there is no statute. or custom or precedent in the way, must be so ruled to be when a litigation presents the issue for decision. "Jus est, quod injustum non est. Injustum autem est, quod naturae societatis. ratione utentium repugnat.' He errs, however, as we will see, in assigning the origin of the state to a social contract, and he errs still more in holding this contract irrevocable, unless in cases of summa necessitas. The people, indeed, he maintains, hold the imperium, but this is non exercendum a corpore, sed a capite. Divine revelation is not to be regarded as establishing human law. Human law is to be determined by human reason, but by reason exercised by the state through its duly appointed authorities.

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Of Hooker,

Hobbes.

§ 47. As will be seen hereafter, Hooker and Bacon, while differing in details, agree in the main in holding that as men or nations advance from stage to stage Bacon, and in cultivation and civilization,--as, in point of fact, each generation has experience and knowledge superior to the past, and adds new increments to the past as a basis,-law, which adopts itself imperceptibly to national needs and conscience, is mutable pari passu with the community from which it emanates. Hobbes, also, as the founder of what is called the analytical school of law, is elsewhere considered. The natural condition of mankind, he argues in his Leviathan (1642), is one of war. Each man's hand is lifted against his

1 Infra, § 86.

2 Supra, § 6; infra §§ 90 et seq.

neighbor, and the only escape is by treaties or compacts by which the aggregate force of those thus contracting is placed in the hands of one absolute chief. This sovereign is to be supreme over church as well as over state; it is his duty to do what is best for his subjects, but his subjects cannot compel him to do his duty. Law, therefore, has its origin in fear. This fear, however, calls for a sovereign, and a sovereign, to be efficient, must be autocratic; though this point is admitted to be open to modification in countries whose traditions require parliamentary institutions. From the sovereign, as is shown elsewhere in our discussion of the analytical school, to which Hobbes gave the earliest impulse, all law is derived; for, though there may be a sovereign without law, there can be no law without a sovereign. If it be objected that the common law does not emanate from the sovereign, the answer is that the sovereign does not order, he permits, and thereby sanctions.1

Of Püfendorff.

§ 48. Püfendorff, partly in reply to Hobbes, published, in 1672, a treatise called "De jure naturae et gentium," in which he developes more fully Grotius's position that the state is based on the social instinct, differing, however, from Grotius in making, according to the criticism of Geyer, this instinct to spring, not from kindliness, but from egotism. In a state of nature men are at peace, and endowed with equal rights; but when, by a "social contract," a state is organized, then its laws are to be observed. "The state is a creature of the human will, a moral person, whose object is pax et securitas communis."

Of Spinoza.

49. Spinoza took the lead in a new scheme of jurisprudence if it can be called such. As, according to his view, everything is God and God is everything, there can be no wrong done, for there is no such thing as wrong, successful might being right. Every person has summum jus ad omnia quæ potest. It is true that if each man follows without restraint his passions, universal disorder will result; and

1 Supra, § 6; infra, §§ 56, 90 et seq.; see for Burke's criticisms on Hobbes, Tracts on Popery Laws, cap. iii. part 1. 2 Geyer, op. cit. Judge Wilson, in

his Lectures (i. 69), is in error in assuming Pufendorff to agree in this respect with Hobbes.

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