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mind. Or he may ask this question, Admitting such to be the case, what is the practical utility of establishing such a proposition ? The question may be answered
1st. The division of legal notions into natural and artificial will facilitate an intelligent classification of the legal principles of any system.
2nd. By separating the natural from the artificial principles, we see at once the peculiarities of the particular system under study.
3rd. Having ranged the natural and artificial principles under distinct heads, we may subdivide each into substantive and adjective law.
4th. If we could agree as to what would constitute a complete natural system, Ist, of substantive law, and 2ndly, of adjective law—and there appears no reason why we should notwe should then possess a model or standard to which we might refer all existing systems.
Again, it may be asked, How is it, if sound principles are taught to man by nature, that we find so much in all human institutions that is at variance with them ?
The answer appears to be this. Nature teaches but does not force obedience to her dictates. The consequence of indifference to her admonitions is punishment. It is a fact worthy of note, that there cannot be a tyrant where there are no slaves.
To secure life and peace, men are apt to relinquish all else; independence, freedom, rank, and even integrity and self-respect. The austerity of the parent or custodian of youth is an incentive to deception as a screen from punishment. The cruelty of masters has rendered slaves notoriously liars, and the tyranny of the despot has made a nation perfidious and false. There is a tyranny of fashion, of public opinion, which is no less potent for mischief. Superstition and intolerance either prevent the exercise of reason and the growth of intelligence; or what is worse, force it to conceal itself, and to walk the world enmasked. vicious system, which dignifies pedantry with the title of learning, in lieu of developing the natural faculties of youth by exercise in observation, comparison, and reasoning, dwarfs the young intellect with the practices of the parrot, and no less surely impedes mental development than the Chinese shoe does that of the physical foot. Remove these curses, the inventions of tyranny or ignorance, and nature will re-assert herself, mystery give place to truth, and reason take that of superstition.
To conclude this chapter, I purpose briefly to notice the terms Jurisprudence and Positive Morality; to state what is understood by the expression, The Science of Legislation, and to distinguish it from the Science of Ethics, or Deontology.
Jurisprudence — the science of positive law - is divided into two branches, general jurisprudence, or the science of general or universal positive law; and particular jurisprudence, or the science of the positive law peculiar to any given country, or, more correctly, to any given political society.
It is, then, to general jurisprudence that we must look for the principles common to all positive law; to the particular jurisprudence of our own country for the system peculiar to ourselves, or for English Municipal Law.
Perhaps no other term or word conveys to the mind a less clear notion or idea than the word Law. We talk indifferently of the “laws of God," of the "laws of the land," of the "laws of morality,” of the “ laws of honour," of the “laws of nations," of the “laws of science,” of the laws of poetry, of painting, and of many other things.
With most, the terms law and rule are synonymous ; but to all it must be obvious that, when used in connection with these various and altogether dissimilar matters, the same word necessarily imports different things. Our first business, then, is to determine the sense in which it is here employed,—which may, in the first instance, be attempted negatively, by saying that it does not apply in either of the senses above, except as used in the expression “the law of the land.”
Jurisprudence contemplates one form of human society -a State ; one form of power-sovereignty; one class of laws-commands; one class of rights and wrongslegal.
According to modern notions,' says Lord Mackenzie, 'Jurisprudence is the science or philosophy of positive law—that is, law established in an independent political community by the authority of its supreme government. By positive law, jurists understand a collection of rules, to which men living in civil society are subject in such a manner that they may, in case of need, be constrained to observe them by the application of force. General jurisprudence investigates the principles which are common to various systems of positive law, apart from the local, partial, and accidental peculiarities of each; while particular jurisprudence treats of the law of a determinate nation, such as France or England. By French writers, jurisprudence is sometimes used, in a technical sense, to denote law founded on judicial decisions, or on the
writings of lawyers; and in popular language it is frequently employed with us as synonymous with law.
The Roman jurist did not, however, hesitate to define jurisprudence to be the knowledge of things divine and human, the science of right and wrong,'Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.'2
Positive Morality.–Of the laws properly so-called which are set by men to men, some are set by men as political superiors, or by men as private persons, in pursuance of legal rights. Others may be described in the following negative manner : they are not set by men as political superiors, nor are they set by men as private persons, in pursuance of legal rights.'
The laws, improperly so called, which are closely analogous to the proper, are merely opinions or sentiments held or felt by men in regard to human conduct. These opinions and sentiments are styled laws, because they are analogous to laws properly so called ; because they resemble laws properly so called in some of their properties, or some of their effects or consequences.
Objects metaphorically termed Laws. Besides the various sorts of rules which are included in the literal acceptation of the term law, and those which are by a close and striking analogy, though improperly, termed laws, there are numerous applications of the term law, which rest upon a slender analogy, and are merely metaphorical or figurative. Such is the case when we talk of laws observed by the lower animals; of laws regulating the growth or decay of vegetables; of laws determining the movement of inanimate bodies or
1 Mackenzie, p. 44. 2 Just. Inst. 1, 1, 1. 3 Austin, p. 174.
For where intelligence is not, or where it is too bounded to take the name of reason, and therefore is too bounded to conceive the purpose of a law, there is not the will which law can work on, or which duty can incite or restrain.'i
The Science of Legislation.—“The public good ought to be the object of the legislator; general utility ought to be the foundation of his reasonings. To know the true good of the community, is what constitutes the science of legislation; the art consists in finding the means to realize that good.
“The principle of utility, vaguely announced, is seldom contradicted; it is even looked upon as a sort of commonplace in politics and morals. But this almost universal assent is only apparent. The same ideas are not attached to this principle; the same value is not given to it; no uniform and logical manner of reasoning results from it.
• To give it all the efficacy which it ought to have, that is, to make it the foundation of a system of reasoning, three conditions are necessary :
'First. To attach clear and precise ideas to the word utility, exactly the same with all who employ it.
Second. To establish the unity and the sovereignty of this principle, by rigorously excluding every other. It is nothing to subscribe to it in general ; it must be admitted without any exception.
*Third. To find the process of a moral arithmetic by which uniform results may be arrived at.' ?
Ethics. The science of ethics, or, in the language of Mr. Bentham, the science of deontology, may be defined in the following manner :-It affects to determine the 1 Austin, p. 90.
2 Bentham, p. 1.