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INTRODUCTION.

PART I.

THE ELEMENTS.

1. THE FUNCTION OF THE INSTITUTES,

THE function of the INSTITUTES is, to give a comprehensive, historical and doctrinal account of the pure Roman Private Law, suitable for the beginner, as the basis of the study of Jurisprudence in general and of Roman Law in particular. Thus we shall have to consider the pure Roman Private Law which closes with the legislation of Justinian, the classical ' especially, exhibited alone in its rudiments. The detailed and complete treatment thereof belongs to the study of the Digest or Pandects.

The several doctrines of Roman Law have at the same time to be described in their historical development, so that the institutions and maxims of law which later on passed away, called antiquitates iuris, also fall within the limits of the inquiry.

The study of Roman Law in general reposes not. merely upon the fact that it is down to our own day received as the common Municipal Law in certain European States, and as being, partly in form and partly in substance, the basis and essential source of

B

• Cf. §§ 8, 10.

some of the modern Codes, as the Prussian and Austrian, but also upon the high perfection that it attained, especially as worked out by the so-called classical jurists. Their writings stand out incomparably, whether we speak of scientific analysis of the whole substance of Law, or the actual exhibition of legal relations and exactness in the application of legal decisions to the given case; and it is these that have imparted to Roman Law its value as a means of juristic education which has hitherto been unsurCf. Austin, passed."

Lectures on,
Jurisprudence,'
pp. 1114-7
(Student's edn.
pp. 153-6);

Maine, Village
Communities,'
PP. 330, 8qq.

e See Austin,
Lectt. i., v., vi.;

ch.

§ 2. LAW AND JURISPRUDENCE.

LAW is the sum of the rules, clothed with outward compulsory authority, for the life of individuals living together according to natural requirement, and of their Markby, Ele- outward actions in a community; whilst MORALITY, eb. i.; Holland, Which is grounded on Religion, regulates the whole conduct of man, in action as well as in thought, or chh. i.-iv.; and decision for good or evil, in such wise that compliin the Encyclo. ance with its dictates is under the sole control of paedia Britan- personal freedom and the inner consciousness of the individual.d

Elements of

Jurisprudence,'

the art. on 'Law'

nica' (9th edn.

vol. xiv.).

d Cf. § 19, ad

init.

e For methods

of citation, seo

§ 10.

Paulus: Non omne quod licet honestum est.1. 144 pr., D. de R. J. 50, 17."

The basis of Law is, accordingly, the human will and its freedom, or Personality.

Ius in the objective sense (law, rule of law) is the sum of the several rules of law, and imports the will of the community as acknowledging the person himself See Markby, and his rational will. In the subjective sense (a RIGHT, or legal capacity) it indicates the will of the individual vii. For the as acknowledged by the will of the community, because Roman idea of corresponding to it-that is, the lawful faculty for a determinate exercise of will, the legal control over an

Ss. 149-152;

Holland, ch.

imperfect

a legal right,

sec Maine,

Early Law and Custom,'

pp. 365, sq.

1 It is not everything that is allowable which is honourable.

object."

Every legal

a

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 which is Iniuria.

Holland, ubi supra; Markby, 88. 147-8, 181

192.

I; Inst. iv. 4

pr.

Ulpian. Iustitia est constans et perpetua e Cf. D. 9, 2, 5, voluntas ius suum cuique tribuendi.-Iuris praecepta 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. -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 See Savigny, 'System des

ischen Rechts.' i. 407; Austin, 1. pp. 220, 877.

e Holl. pp. 35. 879.-Cf. §§ 3.

f 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 II. 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.

i Holl. p. 10.

4

a Austin, vol. i. 1. c.

• Cf. Markby, ch. ii.; Holland, ch. v.

Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia."-1. 10, § 2, D. de J. et J. (§ 1, I. eod. 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,' ch. i., and

Early Insti

tutions,' ch. 11.;

In early times all Law is ius non scriptuma—i.e., the See 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 ius scriptum, and alongside of the immediate instinct for Law and of its creation is introduced that declared Mkby. ss. 79. sqq.; Holl. pp. and made known by the constitutional organ of the State-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 8.61-71; 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.

45-51.

с

p. 56.

Inst. i. 2, 3: Constat ius nostrum aut ex scripto aut ex non scripto. 9: Ex non scripto ius venit quod usus comprobavit : nam diuturni mores consensu utentium comprobati legem" imitantur.' Ulp. Mores sunt tacitus consensus populi dence, pp. 29, longa consuetudine inveteratus.-Fr. 4.

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

d For lex, sce Clark, Practical Jurispru

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.

Customs are the tacit consent of a people determined by ong-standing habit.

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