descending into practical downright outlawry, the fixing of the wolf's head. Custom precedes "Proper Law" in the beginning of States, and not infrequently extends its sway far among the facts of modern political organisation. Science of founded on an not uni true, can And, just as the science of so-called Political Economy, Austin's resting upon a single broad assumption and despising Law, being contemporary considerations alike of sentiment and space, becomes a World Economy, inapt as the guide of the initial premise practical statesman, so must a science of Law, erected on an initial premise not universally true, be partial and versally incomplete'. Austin himself cannot keep taut the guiding not but lines, and is obliged to admit within the very field of admit exJurisprudence itself certain objects which according to his in appliprinciples are improperly termed laws. The admission to cation. rank with Positive Laws of the rules which are known as Explanatory or Declaratory Laws, being acts of authentic interpretation, of Laws to Repeal Laws, and Laws of Imperfect Obligation or laws without a sanction, can only be regarded as a confession of failure'. ceptions II. The Philological Objection. Jus is not the "Jussum": Law is not "that which is commanded." cal Ob Austin's The second main objection to the Austinian analysis II. The is founded upon the evidence of Philology. If the history Philologi. of facts is an abiding witness against Austin, neither is jection to the history of words silent. Words are to-day mere titles, analysis of but words have root-meanings. And, if words may speak for themselves by these root- mand. meanings, Obligation precedes Command with the Indo-"ObliEuropean. 1 Cf. Maine, Early Hist. of Institutions, p. 361. 2 Austin, Jurisp. p. 219. 3 See Clark, Practical Jurisprudence, Chapp. 11.-VII. Law as gation" precedes "Com mand" in root meanings: Greek, Roman, English, Hebrew, The Greek' has his "Law:" he acknowledges the reign of Θέμις", of Δίκη and of Νόμος. Θέμις, the earliest of these in point of time, is "ordinance," "the appointed," but it is the ordinance of Heaven made known to men the subjects thereof through the inspired mouth of some Hellenic Dubhthach, some priestly or royal judge, touched by the sanctifying hand. Aixn is "judgment," the “indicated," "the revealed:" while Nópos is pure "Custom." The Roman, again, has his three jural conceptions, Jus, Lex, and Rectum. But Jus (the abstract) is not "the jussum," but "that which joins," so "the binding," and "the proper." Lex (the concrete), Statute, is "that which binds" or, may be, "the read out," whether in rogation or otherwise. Rectum is not "the commanded" (rego), but "the straight" (Sanskrit Riju), while to do wrong is to twist, to wrench, to adopt crooked courses. And so the derivatives Diritto, Derecho, Droit, which descend through the late Directum, bring down, like Right, Recht and Richter, the root notion of "physical straightness." The primitive English law was Æ", "the eternal," "the everlasting," the descended from old time. But the Saxon recognised law also in the Dom, "the judgment," he reverenced the Domboc, and he feared the Domesday. He bowed, no doubt, to the Asetnis, "the ordinance," but that which which he finally accepted at the hand of his Danish conqueror was none of these, but Lagu, “Law," "that which lies." And, if I am rightly informed, Shemite testimony is in accord with Aryan. Amongst the Hebrews, if anywhere, Law might well be expected to be "command." And, in fact, Brith, translated in our English Bible "Covenant" is Divine Command, but it represents no earthly law but the dreadful and inscrutable counsels of God. Brith as definitely revealed to man is Edah, translated "testimony." "Law" 1 Maine, A. L. Chap. 1. Clark, P. J. Chap. IV. 2 Holland, Jur. pp. 13, 14 n. in the abstract (Jus) is with the Hebrew Tora(h), which is "teaching," but "teaching by pointing or indication." Khoq (Khok), Statute, is "something engraved" (as on a rock), "a deep line." "He hath compassed the waters with bounds (Khoq)" Job xxvi. 10. But "It was a custom (Khoq) in Israel that the daughters of Israel went yearly to lament the daughter of Jephthah the Gileadite." Judges xi. 39-40. Mishpat, the most concrete of Hebrew epithets for Law, is "the sentence of a judge," but "the sentence of a judge as declaratory of custom," and so Custom. A great leader of the Hebrew race like Samuel is Shophet, a "Judge" and "Dictator," but not a "Lawmaker." The Arab, too, has his Shereya(h), or Law of God Arabic, (Modus or Natura), administered by the Cadi, the "executor:" and he has his science of law, Fikh or "interpretation," the science set out by the Mejlis, the legal advisers who, headed by the Mufti, assist the Cadi. The "Books of the Law" expounded by these luminaries are four in number, (1) Tourat = the Jewish Pentateuch, "the Law," (2) Zobur = the Prophetical Books of the Old Testament, (3) Injil the New Testament, and (4) Koran, the last and greatest, which seemingly is "that which is to be read" (Ikra, to read). But Law is Din, "submission" or "obligation," while the Dayyan is the judex. = And, lastly, the very Turk has his Destur. or Code, Turkish. as well as his Firman, or edict of the Sultan. But Nizam (Jus), law in general, is "order," the root idea being "arrangement" or "regulation," or perhaps more exactly "linea," "a measuring cord." Ultimately Nizam is "Custom." Kanoon (Lex) is clearly xavov, with a root derivation connected with "a straight reed" or measuring rod (καννά). The term law, then, translates into English a long succession of other terms, which have been employed by various peoples from time to time to express their conception of a particular notion. The analogies set forth have The fundamental basis of Law is conduct. minate imposer been divers, but the consistent notion to be extracted from all is not command but obligation, not imposition but observance, conduct and orderly conduct. It is common ground that "law," its equivalents and concomitants, have to do with conduct, and human conduct. But with Austin the human conduct which is selected for exclusive adornment is that human conduct which accompanies command, accompanies, that is, the expression of a wish by determinate sanctioning authority. "A law is a command which obliges a person or persons to a course of conduct." But, when we look to the past, we discover the existence of societies political and independent, living under rule indeed, following, that is, a course of conduct and holding themselves obliged thereby, yet knowing nothing of command. They have magistrates, truly, and rulers and kings, kings who may judge the people, and go out before them, and fight their battles, judges held inspired and chieftains of heroic mould, yet these are not legislators, framers of rule for future conduct. And men so living gave names to the rules by which they lived; and the men died, but the names lived on, lived on even when the ealdorman had become the heretoga, and the heretoga the king, and legislation had become de facto command; lived on till men talked of Droit (droit administratif), and of Tort-as well they might--in a land where the one man declared himself the State ("L'Etat c'est moi!"), and government was symbolised by the lettre de cachet and the Bastille. And then Rousseau moved a world with the slighted Law of Nature. As time went on, the old terms expressed The deter- the old notion, but annexed to that old notion were the new accidents, the accident of the determinate imposer, and the accident of the determinate sanction. Rules of conduct nevertheless remained conforming to the old sanction notion, and without the modern adjuncts, rules of conduct are merely accidents. observed by men, and by them held obligatory. In respect of the character of the authority responsible for the and the deter minate different rules, and in respect of the character of the sanction enforcing them, the old and the new belong, it may be, to different species', but the root-foundation is the same. And, belonging to different species, it might be well to denote them by apt and special names, names which should fulfil the end of naming, at once distinguish and describe. To attempt a distinction, however, after the model of Austin, by depriving of their ancient appellation the old rules in favour of the new were to add yet another drop to the already aching sea of confusion. III. The Objection of Common Usage. Law" is not by standard writers in general confined to the to Austin's of Law as For, thirdly, by speakers and writers of every tongue III. The throughout all time to the present day, the term "law," Objection its equivalents and concomitants, have been familiarly Analysis employed, and employed not with any rigid restriction to Command Command imposed by determinate superiority to determi- derived nate inferiority and enforced by determinate sanction, mon but with every shade of meaning, from the wide high- Usage. sounding generalisations of Montesquieu and Hooker to the trite and narrow delimitations of Hobbes, and his not been admirer Austin. from Com The term Law has by writers in general "restricted to Com Black stone's "Law, in its most general and comprehensive sense," says Blackstone, “signifies a rule of action; and is applied mand. indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational. Thus we say, the "Law." laws of motion, of gravitation, of optics, of mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey." Blackstone, Vol. I. p. 38. 1 Holland, Jur. p. 24. |