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test of positive law and morality, or it affects to determine the principles whereon they must be fashioned in order that they may merit approbation. In other words, it affects to expound them as they should be; or, it affects to expound them as they ought to be; or, it affects to expound them as they would be if they were good or worthy of praise; or, it affects to expound them as they would be if they conformed to an assumed
The science of ethics consists of two departments : one relating specially to positive law, the other relating specially to positive morality. The department which relates specially to positive law, is commonly styled the science of legislation, or, simply and briefly, legislation. The department which relates specially to positive morality, is commonly styled the science of morals; or, simply and briefly, morals.'1
As the science of ethics embraces the whole range of moral duties, its province is evidently much wider than that of jurisprudence, which treats only of those duties that can be enforced by external law. To explain these distinctions, writers on ethics affirm that what is enjoined by jurisprudence is of perfect obligation, and what is enjoined by morality is of imperfect obligation—that is, that we may or may not do what our conscience dictates, but that we can be compelled to do what positive law directs.
Experience shows that the number of actions which are commonly withdrawn from the free will of the individual, and regulated by state legislation, is exceedingly various, being sometimes more and sometimes less, so that no limits can be assigned to the domain of law. Of positive moral rules, some are laws properly so called, being transcribed into the civil law, and adopted by it; while others are merely rules imposed by opinion, and not imperative, the obligation to observe them resting only upon the conscience.
1 Austin, p. 177.
The Divine law, morality, and positive law, are related to each other in various ways; and there are cases wherein they agree, wherein they disagree without conflicting, and wherein they disagree and conflict.
Justice and Injustice.-'When Hobbes affirms that “no law can be unjust,”—an assertion that may appear to many a startling paradox,-he means, that no positive law is legally unjust; and this is quite correct. For the measure or test of legal justice and injustice is positive law. But, although an act may be just, as tried by a given law, the law itself may be unjust, as measured by a different standard, such as the Divine law, or positive morality.'
* Though it signifies conformity or nonconformity to any determinate law, the term justice or injustice sometimes denotes emphatically conformity or nonconformity to the ultimate measure or test, namely, the Law of God. This is the meaning annexed to justice, when law and justice are opposed.?!
Natural justice or equity, says Lord Mackenzie, consists in doing what is right in the circumstances of each particular case. Legal justice means acting in conformity with positive law.
Justice was defined by Ulpian to be a constant and uniform disposition of mind to render to every one his due,—Justitia est constans et perpetua voluntas jus suum cuique tribuendi.'
1 Studies in Roman Law, p. 45. See Austin, p. 275, note.
I have grouped together, and briefly noticed, in this chapter, those subjects which, while strictly belonging to the science of jurisprudence, may with proprietyin order to distinguish them from the contents of the next chapter-be termed the speculative matter of jurisprudence. The term "speculative” must not, however, be understood as denoting inferiority; for, imperfect as is this sketch, the reader can hardly fail to be impressed with the fact, that without clear notions concerning these debated subjects, and the contentions of the rival theorists, he is in constant peril of misleading, and of being misled, at the very threshold of the science, by the peculiar use of a single word or expression.
(For a general view of the subject matter of this chapter, the reader is
referred to Table II.)
A Natural Society-a society in a state of natureis composed of persons who are connected by mutual intercourse, but are not members, sovereign or subject, of any society political. None of the persons who compose it lives in the positive state, which is styled a state of subjection; or, all the persons who compose it live in the negative state, which is styled a state of independence.?
An Independent Body Political is one which recognizes no superior, and which consists of two elements, the sovereign or governing, and the subject or governed.
A Nation.—' An independent political society is often styled a “nation,” or a “sovereign and independent nation.' But the term or nation,” or the term "gens," is used more properly with the following meaning. It denotes an aggregate of persons, exceeding a single family, who are connected through blood or lineage, and, perhaps, through a common language. And, thus understood, a “nation" or "gens" is not necessarily an independent political society.'?
'In order that an independent society may form a society political, it must not fall short of a number 1 Austin, p. 231.
2 Ib., p. 249, note.
which cannot be fixed with precision, but which may be called considerable, or not extremely minute. A given independent society, whose number may be called inconsiderable, is commonly esteemed a natural, and not a political society, although the generality of its members are habitually obedient or submissive to a certain and common superior.'l
A State may be defined to be an independent body political, or society of men possessing a given territory, united together for the purpose of promoting their mutual security and advantage by their combined strength.
Half Sovereign States.-—'All Sovereign States are equal in the eye of international law, whatever may
be their relative power. The sovereignty of a particular State is not impaired by its occasional obedience to the commands of other States, or even the habitual influence exercised by them over its councils. It is only when this obedience, or this influence, assumes the form of express compact, that the sovereignty of the State inferior in power is legally affected by its connection with the other. Treaties of equal alliance, freely contracted between independent States, do not impair their sovereignty. Treaties of unequal alliance, guarantee, mediation, and protection, may have the effect of limiting and qualifying the sovereignty, according to the stipulation of the treaties. States which are thus dependent upon other States, in respect to the exercise of certain rights essential to the perfect external sovereignty, have been termed Semi-Sovereign States.'3
1 Austin, p. 237.
2 In consequence of the great changes wrought by the French Revolution, such communities or governments have wholly or nearly disappeared.
3 Wheaton, p. 58.