CHAP. III. the redress is to take the shape of temporal reward and punishment, or, as under the Christian dispensation, the readjustment of religious good and evil is postponed to a future state of existence. The laws of God thus resemble in almost every point, other than the essential points of source and sanction, those laws which we shall presently admit to be properly so called. It is however just this difference of source and sanction which withdraws them from the cognisance of Jurisprudence. Laws the author and upholder of which is superhuman are within the province of quite a different science, and the jurist may be warned, in the quaint words of Thomasius, not to put his sickle into the field of dread Theology1.'

Human laws.

Definition of a law.

Leaving therefore on one side those rules which are set by God, we come to those which are set by a definite human authority, and here we draw the final distinction between the case when such authority is, and the case when it is not, a sovereign political authority. Rules set by such an authority are alone properly called 'laws.'

By a successive narrowing of the rules for human action, we have at length arrived at such of those rules as are laws. A law, in the proper sense of the term, is therefore a general rule of human action, taking cognisance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is paramount in a political society.

More briefly, a general rule of external human action enforced by a sovereign political authority.

All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only.

Ne falcem hic immittamus in campum venerandae Theologiae'; Inst. Iur. Div., lib. i. c. 1. § 163. Elsewhere the same author doubts the truth of the conception of God as a law-giver. The wise man, he says, sees in God rather the teacher of a law of Nature, or a Father; Fund. I. Nat. et Gent. c. 5.

CHAPTER IV.

POSITIVE LAW.

laws.

A LAW, in the sense in which that term is employed in Positive Jurisprudence, is enforced by a sovereign political authority. It is thus distinguished not only from all rules which, like the principles of morality and the so-called laws of honour and of fashion, are enforced by an indeterminate authority, but also from all rules enforced by a determinate authority, which is either, on the one hand, superhuman, or, on the other hand, politically subordinate.

In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as 'positive' laws 1.

It is to such laws that the following definitions will be Definifound to have reference :

Τοῦτό ἐστι νόμος, ὦ πάντας ἀνθρώπους προσήκει πείθεσθαι διὰ πολλὰ, καὶ μάλιστα ὅτι πᾶς ἐστι νόμος εὕρημα μὲν καὶ δῶρον θεοῦ, δόγμα δὲ ἀνθρώπων φρονίμων, ἐπανόρθωμα δὲ τῶν ἑκουσίων

1 'Positive are those which have not been from eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others.' Hobbes, Leviathan, p. 148. 'Positiva' are opposed to 'naturalia' by Aulus Gellius, as éσe to púoe: 'Naturalia magis quam arbitraria.' Noctes Att. x. 4.

tions.

CHAP. IV. καὶ ἀκουσίων ἁμαρτημάτων. πόλεως δὲ συνθήκη κοινὴ, καθ ̓ ἣν ἅπασι προσήκει ζῆν τοῖς ἐν τῇ πόλει.-Demosthenes 1.

Ὅσα γ ̓ ἂν τὸ κρατοῦν τῆς πόλεως βουλευσάμενον ἃ χρὴ ποιεῖν γράψῃ, νόμος καλεῖται.—Xenophon 2.

Ο νόμος ἐστι λόγος ὡρισμένος, καθ ̓ ὁμολογίαν κοινὴν πόλεως, μηνύων πῶς δεῖ πραττεῖν ἕκαστα.—Anaximenes 3.

'Lex est generale iussum populi aut plebis, rogante magistratu.'-Atteius Capito *.

'Lex est commune praeceptum, virorum prudentium consultum, delictorum quae sponte vel ignorantia contrahuntur coercitio, communis reipublicae sponsio.'-Papinianus 5.

The speech of him who by right commands somewhat to be done or omitted.'-Hobbes 6.

'Voluntas superioris quatenus libertatem coarctat lex dicitur.' -Thomasius 7.

'A portion of discourse by which expression is given to an extensively applying and permanently enduring act or state of the will, of a person or persons in relation to others, in relation to whom he is, or they are, in a state of superiority.' -Bentham 8.

'Das positive Recht durch die Sprache verkörpert, und mit absoluter Macht versehen, heisst das Gesetz.'-Savigny. 'Die von der höchsten, Staatsgewalt aufgestellten objectiven Rechts-sätze.'-Bruns 10.

'Der Inbegriff der in einem Staate geltenden Zwangsnormen.'-Ihering 11,

Most of the terms employed in our definition of positive law have already been sufficiently discussed. It remains

1 Adv. Aristogeit. p. 774; Dig. i. 3. 2, Cf. the descriptions of vóμos as δόγμα πόλεως, δόξα πολιτική, in Plato's Minos, p. 314 c.

2 Mem. i. c. 2. 43.

4 Apud A. Gell. x. c. 20.

3 Arist. Rhet. ad Alex. i. 4. 5 Dig. i. 3. 3.

Works, ii. p. 49; cf. iii. p. 251. 7 Iur. Div. i. 84. 8 Works, iii. p. 233

9 System, i. p. 39.

10 Apud Holzendorff, Encyclopädie, i. p. 258.

11 Der Zweck im Recht, i. p. 318.

however to explain what is meant by a sovereign political CHAP. IV. authority.'

A People' is a large number of human beings, united People. together by a common language, and by similar customs and opinions, resulting usually from common ancestry, religion, and historical circumstances.

A State' is a numerous assemblage of human beings, State. generally occupying a certain territory, amongst whom the will of the majority, or of an ascertainable class of persons, is by the strength of such a majority, or class, made to prevail against any of their number who oppose it.

A State may be coextensive with one People 1, as is now the case in France, or may embrace several, as is the case with Austria. One People may enter into the composition of several States, as do the Poles and the Jews.

A People, it is truly said, is a natural unit, as contrasted with a State which is an artificial unit 2. There must doubtless have been Peoples before there were States; that is to say, there must have been groups of human beings united by similarity of language, customs, and opinions, before there arose amongst them an organisation for enforcing the opinions of the majority, or those of a government acquiesced in by a majority, upon an unwilling minority.

Although scarcely any traces remain in history of the transformation of a People into a State, it is impossible to affirm, with Savigny, that a People, which he calls 'an invisible natural whole,' never exists as such; never, that is to say, without its bodily form' the State 3. Aristotle speaks of the Arcadians as remaining an Ovos till, by the founding of Megalopolis, they become a Tóλis 4. Nor can we follow Savigny in regarding the creation of the State as

1 According to the extreme advocates of the doctrine of Nationality,' especially in Italy, this is the only perfect and legitimate State: e.g. Mancini, Della nazionalità come fondamento del diritto delle genti (1851). Prolusioni, Napoli, 1873.

2 Savigny, System, i. p. 22.

3 Ib. p. 22.

Pol. ii. 2. 3.

CHAP. IV. the highest function of Law1. Morality may precede, but Law must follow, the organisation of a political society.

Definitions

of a State.

Of such a society the following definitions have been given at various periods :

Ἡ δ ̓ ἐκ πλειόνων κωμῶν κοινωνία τέλειος πόλις, ἡ δὴ πάσης ἔχουσα πέρας τῆς αὐταρκείας, ὡς ἔπος εἰπεῖν, γινομένη μὲν οὖν τοῦ ζῆν ἕνεκεν, οὖσα δὲ τοῦ εὖ ζῆν.-Aristotle 2.

Respublica est coetus multitudinis, iuris consensu et utilitatis communione sociatus.'-Cicero 3.

6

Civitas nihil aliud est quam hominum multitudo, aliquo societatis vinculo colligata.'-S. Augustine *.

'Respublica est familiarum rerumque inter ipsas communium summa potestate ac ratione moderata multitudo.'-Bodinus 5. 'Civitas est coetus perfectus liberorum hominum, iuris fruendi et communis utilitatis causa sociatus.'-Grotius ®.

The Common-wealth is one Person, of whose Acts a great multitude, by mutuall Covenants, one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient, for their Peace and Common Defence.' --Hobbes 7.

Societas hominum communis boni coniunctis viribus. promovendi causa contracta civitas est.'-Wolf3.

'A State is a body of free persons, united together for the common benefit, to enjoy peaceably what is their own, and to do justice to others.'-Supreme Court, U. S.9

'Der Stat ist die politisch organisirte Volksperson eines bestimmten Landes.'-Bluntschli 10.