a object. Every legal Right correlates with a legal Compare DUTY' or Obligation. definitions collected by Hol The conduct of the individual which answers to the land, p. 64. precepts of Law is called Iustitia, the opposite of supra; Markby, which is Iniuria. Holland, ubi 88. 147-8, 181 с 192. I; Inst. iv. 4 prae- pr. Ulpian. Iustitia est constans et perpetua e cf. D. 9, 2, 5. voluntas ius suum cuique tribuendi.—Iuris cepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.-1. 10 pr., § 1, D. de J. et J. 1, 1 (=pr. § 3, I. eod. 1, 1).a1 Idem: Iniuria ex eo dicta est, quod non iure heutigen Römfiat; omne enim quod non iure fit, iniuria dicitur. i. 407; Austin, -D. 47, 10, 1 pr. Only the POSITIVE is actual Law, that of a certain State or organically constituted community, to which the power of such State lends external authority. There is no Law the same for all peoples." d Sec Savigny, 'System des ischen Rechts,' 1. pp. 220, 89Q. e Holl. pp. 35, 879.-Cf. §§ 3. Austin, Lect. chh. iii.-iv.; 7: Holland, pp. The so-called 'Law of Nature," if we are to under- 4 stand by that a complete Law, derived merely from 32; Maine, principles of Reason by abstract thought, individual Ancient Law," caprice a priori, or absolute Law-is a nonentity: it Mkby. ss. 116exists solely in the consciousness of its author, by whose 26-33individual development it is conditioned." Rightly con- cf. § 15. ceived, the function of the Law of Nature or 'Philosophy of Law' is, on the one hand, to develop in general the ultimate ground of Law-that is, the ethical principles which flow from the nature of man as of a being designed for freedom," and to test with such Cf. Inst. i. 2, principles the rules of positive law in the light of their morality and rationality; on the other hand, to discover from an historical standpoint the inner connection of positive law with the entire moral, intellectual and social development of the people. 1 Justice is the settled and permanent desire to render to every one his due.-The precepts of Law are as follows: to live virtuously, not to injure another, to render to each his due. * Iniuria has been so called because it occurs unlawfully; for whatever occurs unlawfully is called iniuria. II. i Holl. p. 10. a Austin, vol. i, 1. c. Cf. Markby, ch. ii.; Holland ch. v. Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia."-l. 10, § 2, D. de J. et J. (§ 1, I. eod. 1, 1).1 The subject of Jurisprudence is Positive Law in its organic connection; its function is to develop the conceptions of Law from the several legal rules, and, having regard to the whole circumstances of corporate life, to combine all in one system. Paul. Regula est, quae rem quae est breviter enarrat; non ex regula ius sumatur, sed ex iure quod est, regula fiat.-D. 50, 17, 1.2 Iavolenus: Omnis definitio in iure civili periculosa est; parum est enim, ut non subverti posset.-1. 202 eod.3 LEGAL RELATIONS are the concrete relations to one another of men as subjects of will, or 'Persons,' which are regulated by Law. What is called an INSTITUTE of law is the simple sum of the legal relations, regarding what is common to them. § 3. ORIGIN AND GROWTH OF POSITIVE LAW. SOURCES OF LAW." Positive Law, as one side of the general culture of a nation, is developed both in it and with it, in conformity with intellectual and moral conditions, and with the co-operation of that people's special external relations; and is also dependent upon the nature, the geographical position and character of the country it inhabits. The source from which Law springs is the intellectual individuality of the people, or the popular consciousness; hence its national character. 1 Jurisprudence is the knowledge of divine and human things, the science of right and wrong. 2 A rule is that which briefly indicates the subject in question ; not so that the law is derived from the rule, but so that from the actual law is framed a rule. 3 Every definition in the ius civile is precarious, for it may readily be set aside. 'Law Dict.' s. &c. 'Ancient Law,' instinct 'Early Insti tutions,' ch. fi.; declared Mkby. ss. 79. sqq.; Holl. pp. In early times all Law is ius non scriptum-i.e., the Sec Brown, instinct for Law existing in the people makes itself ius scriptum, known immediately in legal usage; hence legal acts, maxims of law, what is called CUSTOMARY Law, or 'mos,' 'mores,'' consuetudo." It is not until a later period cf. Maine, that Law is formulated and written down, yielding chi, and ius scriptum, and alongside of the immediate for Law and of its creation is introduced that and made known by the constitutional organ of the 4State-that is, by LEGISLATION." This is the second Cf. 'Anct. Law, pp. 14source of Law; it in the course of things compresses 20, &c.; Mkby. the other into an ever narrower circle, whether of ss. 61-71; Holl. locality, of persons, or of classes in society. On the other hand, with the progressive development and various formation of Law, the knowledge and improvement thereof must fall increasingly to the special function of those skilled in Law-that is, to JURISTS. Inst. i. 2, 3: Constat ius nostrum aut ex scripto 2 Ingrained in the very essence of positive law is, at the same time, its constant variableness and onward. developinent. Gell. noct. Att. xx. 1, § 22: Non enim profecto ignoras, legum opportunitates et medelas pro temporum moribus et pro rerum publicarum 45-51. с p. 56. d For lex, sce Clark, Practical Jurisprudence,' pp. 29, 8q. Our law consists of written and unwritten law.-Law which has been approved by custom is derived from an unwritten source; for long-standing customs resemble law when approved by the consent of those who use them. 2 * Customs are the tacit consent of a people determined by ong-standing habit. generibus ac pro utilitatum praesentium rationibus mutari atque flecti neque uno statu consistere.' Inst. i. 2, 11 Sed naturalia quidem iura, divina providentia constituta, semper firma atque immutabilia permanent: ea vero, quae ipsa sibi quaeque civitas constituit, saepe mutari solent vel tacito consensu populi vel alia postea lege lata.* STATUTES are the precepts of law declared and made known by the legislative power in the State, and on that account generally binding. The operation of a statute can only commence from the moment of its being made known,-from its publication or promulgation; and it does not extend to earlier cases-that is, to juristic acts perfected under the authority of the earlier law-nor to legal relations already established (acquired rights), unless either the statute attributes to itself retrospective power, or the latter is required by its special nature, its object, or the higher idea of Law, and therefore is to be taken as having been intended a Cf. §7,s.lex-by the legislator." For ex post facto laws, sce Blackstone, 'Commentaries,' i. p. 46 (Stephen, i. p. 27); Austin, pp. 502-3 (Student's edn. p. 241). Imp. Theod. Leges et constitutiones futuris certum est dare formam negotiis, non ad facta praeterita revocari: nisi nominatim etiam de praeterito tempore et adhuc pendentibus negotiis cautum sit.-C. 1, 14, 7.3 For you are surely not ignorant that the advantages and remedies of laws are changed and modified according to the customs of the time and to the kinds of States, as well as to reasons of present utilities, and do not remain in one condition. Laws of nature, appointed by divine ordinance, always remain stable and unchangeable; but such as an individual State has established are wont often to change either by tacit consent of the people, or by the subsequent publication of another law. 3 It is beyond doubt that leges and constitutions only lay down the form of the law for future acts, but cannot be applied to past events, unless something is therein expressly provided concerning past time or matters that are still pending. CUSTOM is not a source, but-like publication of a statute-phenomenal and originative form of Customary Law, although actual usage will contribute much to the establishment and further development of the Law." a Cf. Puchta, 'Cursus der i. p. 23. (9th Iulian. Inveterata consuetudo pro lege non Institutionen, immerito custoditur et hoc est ius, quod dicitur edn.). moribus constitutum. Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: quid interest, suffragio populus voluntatem suam declaret, an rebus ipsis et factis ?-D. 1, 3, 32, 1.1 A customary law is to be acknowledged only if the custom is an established one, evidently by continuity of acts in the Law. Hermogenian.: . . . ea quae longa consuetudine comprobata sunt ac per annos plurimos observata, veluti tacita civium conventio, non minus quam ea, quae scripta sunt iura, servantur.-1. 35 eod.' Ulp. Cum de consuetudine civitatis vel provinciae confidere quis videtur, primum quidem illud explorandum arbitror, an etiam contradicto aliquando iudicio consuetudo firmata sit.-1. 34 eod.❜ 1 An immemorial custom is rightly observed as a lex, and this is the so-called Customary Law. For since the leges themselves are binding upon us for no other reason than because they have been accepted by the will of the people, that also which the people has approved without any written confirmation must rightly be binding upon all: for what difference does it make whether the people declare its will by vote, or by the very matter and act? That which has been approved by a long-standing custom and has been in force during the course of many years must, as the silent consent of the citizens, be observed just as much as the written Law. Taking con 3 When a person ostensibly appeals to the custom of the tradicto as city or province, it must, in my opinion, first be ascertained absolute, with whether it has been actually matter of dispute,' and the custom Clark, cit. p. confirmed by a decision. 217. |