are enforceable to their full extent (efficax), and are only to be held limited (restricta) or wholly invalid (destructa, reprobata), when limited or destroyed by positive law. The degree, consequently, to which a duty founded entirely on natural law is to be limited must depend upon the precepts of positive law, and if such a duty be thereby totally destroyed, it must be treated as wholly without effect. But even in this case such a new state of circumstances may arise from a performance of the duty with full knowledge of all the facts as may be sufficient to prevent the recovery back of what may have been given in fulfilment of it.

2. Moral and Natural Law.
$ 9.

It is a common modern opinion that the moral law leaves every thing to conscience, and that therefore a judge should take no notice of moral duties, unless they be also recognised by positive law. The Romans, however, did not see the subtle distinction drawn by later philosophers between moral law and natural law, and held every duty imposed by the prevailing notions of morality, sense of honour, and propriety, to be a debitum naturale, enforceable by way of defence (exceptio). In this view are to be regarded their three præcepta juris; honeste vive, alterum non læde, suum cuique tribue, precepts which can hardly serve as the basis of jurisprudence, inasmuch as no two persons agree as to their application.h

See further post, § 191, and generally Rosshirt Zeitschrift. B. 1. p. 123--155. L. 6. de iust. et iur. (1. 1.) compared with L. 25. de statu hom. (1. 5.) L. 16. § 1. ad SCtum Vell. (16. 1.) L. 3. C. de aleator. (3. 43.) L. 3. C. de pact. pign. (8. 35.).

See post, § 78.

e Weber ubi sup., § 98. 99.

f L. 25. § 11. de hered. pet. (5. 3.) L. 26. pr. L. 32. § 2. de condict. indeb. (12. 6.) L. 8. in quib. causs. pign. tac. (20. 2.), compared with many similar passages which are cited post, §§ 91. 144. 484. 499. Thibaut Versuche 2. B. p. 132-158. I. Pan. de grati animi officiis. Lugd. Bat. 1809. p. 146148. G. Boreel de veterum ICtorum honestatis studio. Lugd. Bat. 1823. « L. 10. § 1. de iust. et iur. (1.1.) Savigny System B. 1. § 59.

h Sintenis Civilrecht B. 1. § 5. But see Welcker Rechts-&c. Lehre, 544–552.

II.-OF POSITIVE LAW IN PARTICULAR.

§ 10.

Positive law which is by far the most important of all the sources of law, may arise either from commands proceeding directly from the supreme power of a state, or from the concurring views either of the judicial authorities or of the individual members of that state by virtue of a sort of lawgiving power entrusted to or left with them by the supreme authority. Law of the first description, whether it be actually written or not, is usually called Jus scriptum, law of the two last descriptions Jus non scriptum. According to some writers these expressions have a technical and so to speak classical signification; but the Romans seem to have understood them in their literal ordinary meaning. For the sake of conforming to usage the technical sense must however be examined and explained.

1. Written Law.

A. DIVINE LAW.
§ 11.

Positive written law is divided, by those who believe in a Divine revelation, into Divine and Human. The former again is either Particular or Universal, according as it is applicable to a certain class of persons only, or is binding on mankind in general. That the Old Testament is applicable to the Jews is considered by them as clearly established; but there is no unanimity of opinion upon the question whether the Bible is universal law for all mankind or is only to be considered binding upon Christians.m The Jurist,

scripti. Viteb. 1729. Glück Privat-R. 1. Thl. 51—54.

C. L. Crell de origine et virtute iuris non Pand. 1. Bd. § 82. Zimmern Gesch. d. Röm. * L. 32. pr. L. 36. de LL. (1. 3.). Noodt ad Pand. L. 1. Tit. 1. in med. Hänsel Handbuch der Institutionen B. 1. 210-299, 327-362. 1 Sav. Syst. § 22.

Upon the other particular laws of the Jews see Blume das Kirchenrecht der Juden und Christen. 2. Aufl. 17—21, and upon the duty of Jews to conform to German law, see Rheinisches Mus. 3. Jahrg. Nr. 24.

m

Compare Meister num ius divin. detur posit. univ. (in eius exerc. F. 1.) Michaelis Mos. Recht. 1. Th. § 2. Hellfeld de leg. Mos. valore hodiern. (in his Opusc.). Bericht. u. Zus. z. d. Inst. d. R. R. 140–151. Schöman Handb. 2. B. 32-45.

holding himself aloof from every religious sect, can only observe that the Bible is not universally promulgated. Whether the Bible was intended to be universally binding, whether the Mosaical law is or not entirely repealed by the New Testament, and whether the last does or not contain moral precepts only° are questions which must be answered by Theologians and not by lawyers. Thus much however is juridically speaking clear; According to the Roman law the moral precepts of the New Testament, so far as they are confessedly the foundations of duties of love, cannot be considered, in a christian state, as non-existing, but must rather be therein treated in the same way as the Romans treated recognised moral duties (ante § 9).

B. HUMAN LAW.
§ 12.

Adopted Law. The positive Human Law of Germany is partly adopted, i.e. derived from the law of other countries, partly homesprung, i.e. of German origin. The former consists of

I. The ROMAN LAW contained in the collections of Justinian, viz. the Institutes, Pandects or Digest, new Code and Novels so far however only as they are glossed ;P

II. The CANON LAW consisting of

"As for example K. L. Nitzsch üb. die Ungült. d. Mos. Ges. &c. Wittenb. 1800. 22 supposes.

• As is declared amongst others by Popp v. Ehescheidungen. 1—3. Abh.

Of a contrary opinion are C. A. Beck de novell. Leonis earumque usu et auctoritate, and Dabelow Handb. 1. Thl. 198-201. Wening Lehrb. 1. B. Einl. § 2. But compare Walch controv. p. 11. Zepernick mantiss. ad Beck de Nov. Leon. cap. 3. On the unglossed passages in the Codex see G. W. Hugo über die nicht glossirten Stellen in Codex. Jena 1807. Glück Handb. I. p. 271-274. G. A. Cramer sacra natalia Friderici VI etc. Kil. 1826, p. 47 -59. K. Witte die leges restitutae des Justinianeischen Codex. Bresl. 1830, and on the number of glossed novels: Hugo civ. Mag. 3. B. Nr. 2. & 7. P. F. Weiss historia Novell. litterar. Partic. 1. Marb. 1800. Thibaut civ. Abh. 215. Savigny Zeitschr. 4. B. Nr. 4. Glück Handb. 1. B. 231–233. Biener Geschichte d. Novellen 243-249. On the different views of the Glossators see G. Haenel dissensiones dominorum. Lips. 1834, and for their history F. V. Savigny Gesch. d. R. R. im Mittelalter. Heidelb. 1815-1831. See too Osenbrüggen in Linde Zeitschrift Bd. 17. Nr. 11.

1. The Decretum Gratiani containing excerpts from the Fathers, several ecclesiastical and temporal laws, &c., composed A.D. 1151;

2. Gregory the IXth's collection of Decretals (Liber extra Decretum), with similar contents published A.D. 1234;

3. The collection of Decretals by Boniface VIII. (Liber Sextus) A.D. 1298.

4. A collection of orders of Clement V. (Clementina), composed A.D. 1311.

5. The so-called Extravagantes of John XXII. collected A.D. 1340, and the Extravagantes communes of A.D. 1483; the former consisting of Decretals of John XXII., the latter of Decretals of the Popes from Urban IV. to Sixtus IV., and both made law by Gregory XIII., A.D. 1580.9

III. The Libri or consuetudines Feudorum commonly printed at the end of the Corpus Juris Civilis."

$13.

The law adopted from the above sources is only binding in Germany, so far as the homesprung law and its analogies do not interfere with it. The application too of the laws contained in the above collections becomes less and less frequent in proportion as the circumstances for which those laws were made cease to exist." The fact that laws better adapted to existing circumstances are required, or that the reasons of the Roman

1 J. W. Bickell über die Extravagantensammlungen. Marburg 1825. Their reception is to be proved.

r

E. A. Laspeyres über die Entstehung und die älteste Bearbeitung der Libri feudorum. Berlin 1830.

Not. O. v. 1512. I. § 1. 3. K. G. O. v. 1555. Th. 1. Tit. 13. § 1. H. G. O. Art. 118. 126. A. Duck de auctorit. iur. civ. Lips. 1676. Walch controv. p. 3. 4. Peculiar ideas are held by Tönsen Grunds. eines allg. positiven Privatrechts. Kiel 1828. Preface.

L. 6. § 1. de V. S. (50. 16.). I. I. Huck de hodierno iuris Romani usu. Tubing. 1830. Vogel über die Bestandtheile des Pandektenrechts. Leipz. 1831. 18-32. 49-86.

" Weber's Reflex. zur Beförd. einer gründl. Theor. v. heut. Gebr. des R. R. (also in his Vers. 1. B. Nr. 1.).

Laws have ceased, is no Juridical ground for their non-enforce

ment.*

$14.

Homesprung Law. Of homesprung laws some are binding over the whole, others over certain portions only of Germany. The former consist of the laws of the German Empire' and confederacies (Reichs-und Bundes-gesetze); the latter are either Territorial, Provincial or Local, according as they are binding over a territory consisting of several Provinces, a District of the same, or only single places.

2. Unwritten Law.
$ 15.

With regard to unwritten law it is necessary to observe in the first place that every person who is not prevented by a written law can, without requiring any general permission or special approval from the supreme power, subject himself to laws by agreeing to observe them; but in order that a person may be bound by a law which does not proceed from the supreme power, and which such person has not himself agreed to observe, proof must be given of the existence either of some general permission or of a special approval of the supreme authority, by virtue of which the necessity is imposed upon him. Laws of the first description may, for the sake of brevity, be termed conventional, and those of the second description ordained unwritten laws.

A. JUDICIAL DECISIONS.
$ 16.

To the last-mentioned class of unwritten law belong Judicial decisions (res judicata). In every tribunal those rules, whether relating to mere judicial forms, or to points arising in the course

Thibaut Theorie d. log. Ausl. § 16. See however Schweppe Röm. Priv. R. 1. B. § 16. contra W. Müller Civ. Abh. Bd. 1. Giess. 1833. Nr. 5. § 5.

y Mevius P. 2. Dec. 185. Hufeland's Beitr. 1. Hft. 3. St. Savigny System Bd. 1. § 2.

2

These are only binding after they have been promulgated in the state to which they are to apply. K. E. Weisz deutsches Staatsrecht. Regensb. 1843. § 7.