CHAPTER VI. THE OBJECT OF LAW. Law as restraining. THE most obvious characteristic of Law is that it is coercive. 'It was added because of transgressions': Iura inventa metu iniusti fateare necesse est1.' 'Law was brought into the world,' says Hobbes, 'for nothing else, but to limit the naturall liberty of particular men, in such manner, as they might not hurt, but assist one another, and joyn together against a common enemy 2.' Even when it operates in favour of the legitimate action of individuals, it does so by restraining any interference with such action. It is accordingly defined by Kant as the totality of the conditions under which the free-will of one man can be united with the free-will of another, in accordance with a general law of freedom3;' and by Savigny, as the rule which determines the invisible limit within which the existence and activity of each individual may obtain secure and free play 4.' Both of these high authorities make the function of Law to 1 Hor. Sat. i. 3. III. Cf. 'Factae sunt autem leges ut earum metu humana 3 Rechtslehre, Werke, vii. p. 27. 4 System, i. p. 114. be the preservation from interference of the freedom of the CHAP. VI, will. This conception is purely negative, and a wider and positive conception is needed to embrace the operation of Public as well as of Private Law. The Kantian definition is wide enough to cover all rules which regulate the relations of individuals one to another, but it is too narrow to cover enactments providing, for instance, for the organisation of a ministry of education, or giving to certain great libraries a claim to a copy of every new book that is published. A school of writers, among whom Krause1 and Ahrens 2 Law as organising. are representative men, demands that Law shall be conceived of as harmonising the conditions under which the human race accomplishes its destiny by realising the highest good of which it is capable. The pursuit of this highest good of the individual and of society needs a controlling power, which is Law, and an organisation for the application of its control, which is the State. The truth which is contained in these somewhat obscure speculations is capable of much simpler expression; and to find a definition of the function of law which would leave these writers nothing to desire, we have only to turn to Lord Bacon, who says: Finis et scopus quem leges intueri, atque ad quem iussiones et sanctiones suas dirigere debent, non alius est quam ut cives feliciter degant3. The same idea is expressed by Locke, who asserts that Law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no further than is for the general good of those under the law. . so that, however it may be mistaken, the end of the law is, not to abolish or restrain, but to preserve or enlarge freedom".' So Bentham: Of the substantive branch of the law the only 1 Abriss des Systemes der Philosophie des Rechtes, 1828. 2 Cours de droit Naturel, 1840. De Aug. lib. viii. aph. 5; cf. S. Thom. 1. 2. q. 90. art. 20 concl. CHAP. VI. defensible object or end in view is the maximisation of the happiness of the greatest number of the members of the community in question1. Still better perhaps is the statement of Leibnitz: humanae societatis custodiam non esse principium Iustitiae, sed tamen iustum esse quod societatem ratione utentium perficit?.? Rights, " Law is something more than police. Its ultimate object is no doubt nothing less than the highest well-being of society and the State, from which Law derives all its force, is something more than a Rechtsversicherungsanstalt,' or 'Institution for the protection of rights,' as it has not inaptly been described. It is however no part of our undertaking to discuss the question how far Law may properly go in its endeavours to promote the well-being of those within its sphere. The merits of a paternal government, of centralisation, of factory acts, of State churches, are topics for the politician rather than the jurist3. Jurisprudence is concerned not so much with the purposes which Law subserves, as with the means by which it subserves them. The purposes of Law are its remote objects. The means by which it effects those purposes are its immediate objects. The immediate objects of Law are the creation and protection of legal rights. 1 Works, ii. p. 6. 2 Obs. de princ. iuris, § ii, Opera, ed. Deutens, t. iv. p. 272. Cf. Portalis, Discours préliminaire sur le Code Civil. 3 With the advance of civilisation the State naturally extends the sphere of its activity. It is represented by some writers as having been successively devoted to War, to Law, and to Culture and Well-being. The danger of a State which has attained this last stage is its tendency towards Communism. For an attack upon this tendency, amounting to an attack upon anything like a 'Kultur- oder Wohlfahrtstaat,' see Herbert Spencer, The Man versus the State, 1884. 4 The creation and enforcement of legal duties is of course the same thing from another point of view; and a point of view from which some writers prefer to regard the operation of Law. Cf. infra, p. 74. CHAPTER VII. RIGHTS. WHAT then is a 'legal right'? But first, what is a right A right generally. generally? It is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society. When a man is said to have a right to do anything, or over anything, or to be treated in a particular manner, what is meant is that public opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approbation, or at least with acquiescence; but would reprobate the conduct of any one who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way. A 'right' is thus the name given to the advantage a man has when he is so circumstanced that a general feeling of approval, or at least of acquiescence, results when he does or abstains from doing certain acts, and when other people act or forbear to act in accordance with his wishes; while a general feeling of disapproval results when any one prevents CHAP. VII. him from so doing or abstaining at his pleasure, or refuses to act in accordance with his wishes. Further than this we need not go. It is for Psychology to inquire by what, if any, special faculty the mind is capable of affirming or denying the existence of rights. History may also to some extent unravel for us the growth of such conceptions as to rights as are now prevalent; and these are among the most vexed questions of Psychology and of the History of Civilisation respectively. Jurisprudence is absolved from such researches. The only conception of a Right which is essential to her arguments is that which we have already propounded, and about the truth of which, as far as it goes, there can be no question. A legal right. Ambiguous uses of the term. Jurisprudence is specifically concerned only with such rights as are recognised by law and enforced by the power of a State. We may therefore define a 'legal right,' in what we shall hereafter see is the strictest sense of that term, as a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others. That which gives validity to a legal right is, in every case, the force which is lent to it by the State. Anything else may be the occasion, but is not the cause, of its obligatory character1. Sometimes it has reference to a tangible object. Sometimes it has no such reference. Thus, on the one hand, the ownership of land is a power residing in the landowner, as its subject, exercised over the land, as its object, and available against all other men. So a father has a certain power, residing in himself as its subject and exercised over his child as its object, available against all the world besides. On the other hand, a servant has a power residing in himself as its subject, available against his master to compel the payment of the wages which are due to him. This simple meaning of the term 'a right' is for the purposes of the jurist entirely adequate. It has however been 1 As Thomasius says of Pactum,' non est causa sed tantum occasio obligationis.' |