(1) Conservative, of whom Blackstone is the chief representative, holding that the common law is the perfect embodiment of wisdom, and has existed as such from times immemorial, and that it should be forever preserved as it is. That the position of this class of jurists in respect to the common law is based on a mistake is elsewhere seen; and aside from this, the fallacy of the position is shown from the fact that the period of common law perfection shifts with the era of the particular eulogist. (2) Progressive, holding that the law of a nation is the product of its conscience and need at each particular era. The leading positions relied on by this school will be hereafter considered. It is sufficient to say at this point that viewing conscience, not as an insulated moral sense, intuitive or inspired, but as the moral sense of the nation, modified by reason and hereditary and traditional tendencies, the progressive historical and ethical schools coincide." § 7. We are frequently told of "rights of persons," and of 1 Infra, §§ 14 et seq. Infra, §§ 14 et seq., 53 et seq. 3 Infra, § 60. ... "The historical method," says Mr. F. Pollock, in an inaugural lecture at Oxford, in 1883, "is not the peculiar property of jurisprudence. . . . The doctrine of evolution is nothing else than the historical method applied to the facts of nature; the historical method is nothing else than the doctrine of evolution applied to human societies and institutions. Savigny, whom we do not yet know or honor enough, and even our own Burke, whom we know and honor, but cannot honor too much, were Darwinians before Darwin." See infra, §§ 33, 55. As will be hereafter seen (infra §§ 33, 86), Mr. Pollock might have gone further back than Burke, and shown that by Hooker the power of "environments," in the silent modifications of law is recognized as fully as it is by Burke. In a work published by Mr. John M. Lightwood, in 1883, entitled, "The Nature of Positive Law" (Macmillan & Co., London), the characteristics of the historical and analytical school are set forth with much fulness and skill. The general position is that of Savigny, that law is not set by a sovereign to a subject, but emanates spontaneously from the people. Such law is at once prompted and guarded by the popular conscience, and is therefore a rule of conduct not imposed of right, but accepted as right. Scientific law, as it is called by Mr. Lightwood, comprises legislation, judge-made and jurist-made law, and is simply an expression of the common popular will. On this, however, Ihering has grafted a qualification which is accepted by Mr. Lightwood, viz., that in its origin even customary law is based on force-e. g., the force of one able to compel obedience-but that it does not become settled customary law until the sense of this force passes away. Legal right is the right to control another. "rights of things," as if the two were distinguishable, and as if a thing which is in itself unconscious and incapable of volition could have rights. So far, however, as concerns jurisprudence, the only rights cognizable, as will presently be seen, are the rights of persons; and so far as concerns persons, unless such rights can be enforced, they are not within the sphere of law in the sense in which the term is used in the present treatise. Hence the proper definition of a legal right is a right to control the action of others. It is not necessary that the control should be enforceable primarily by judicial process. A father has a right to control a child, for instance, though the right is one in the exercise of which in many cases the courts give him no aid.2 Control, in the sense before us, therefore, is of two kinds: 1st, that which the law gives process to effect; 2d, that which the law permits and refuses to arrest, though ready if necessary to modify.3 Viewing legal right in this sense, it is distinguishable from might, which is capacity to compel without rightfulness, and from a merely moral right, in which there is rightfulness without capacity to compel. The distinction between moral and legal right is sometimes faint, yet its existence cannot be avoided. It is essential that the law of the land should specify what acts do and what acts do not impose an obligation; and the line drawn in both the Roman and the English common law, that the acceptance of a benefit does not involve a promise to pay for it, is founded on sound principle. It is true there are many cases in which we say that kindness received ought to be met by kindness returned. But it is obvious that business could not be safely conducted, if parties were to be made liable for debts which they did not contract in terms which both parties at the time regarded as creating indebtedness. If kindness were made compulsory, it would cease to be kindness. § 8. To a legal right, it is essential, in the first place, that 1 Kant's definition is to the same effect: "Die Befügniss zu zwingen," Rechtslehre Werke, vii. s. 29. 2 Infra, § 11. 3 See supra, 5. 4 See discussion in Whart. on Cont., §§ 784 et seq. not constitute a status. (2) The "things," relationship to which forms a distinct category, are things incorporeal as well as things corporeal, including, therefore, services which do not concern that which is tangible and material, as well as services almost exclusively relating to that which is tangible and material. Law a con dition of liberty. § 10. The term law, as we have seen, is used in two senses: first as an order, and secondly as a rule. As an order, it denotes the sequences of the material universe. As a rule, it denotes the principles by which a community is governed. According to Kant, law, in this sense, is a summary of the conditions under which the wills of individuals are harmonized in a system of freedom.1 So far from law being, as is sometimes declared to be the case, the contradictory opposite of liberty, it is a condition without which liberty cannot exist. If the lawlessness of others be not restrained, the liberty of enjoyment of property and of personal security must cease to exist. There can be no liberty in the enjoyment of rights unless there be a law for the prevention of wrongs. "Sanc tion" is the imposed on 11. "Sanction" is often treated as convertible with penalty, and no doubt this is correct in respect to criminal procedure. In civil procedure, however, the term has a much wider signification. A liability to be enjoined from doing a forbidden act, for instance, is a sanction, and so is a liability to pay damages for a forbidden act when done. In fact, whenever a party is subjected by law to a detriment of any kind for doing or attempting a forbidden thing, such detriment is the sanction of the law by which the thing is forbid 1 Rechtslehre, Werke, vii. p. 273. 2 See on this topic Holland, Jur. 2d edition, 58. Prof. Holland quotes, in addition to Kant's definition above given, that of Locke, to the effect that "the end of the law is, not to abolish or restrain, but to preserve or enlarge freedom." Locke, Civil Government, i. 857. To these quotations may be added the following from Burke disobedience. (Burke's Works, iii. 49, 185): "Liberty must be limited in order to be possessed. The degree of restraint it is impossible in any case to settle precisely. But it ought to be the constant aim of every wise public council to find out, by cautious experiments and rational cool endeavors, with how little, not how much, of this restraint, the community cun subsist," Legal "rights of things," as if the two were distinguisharight is the ble, and as if a thing which is in itself unconscious right to control another. A and incapable of volition could have rights. So far, however, as concerns jurisprudence, the only rights cognizable, as will presently be seen, are the rights of persons; and so far as concerns persons, unless such rights can be enforced, they are not within the sphere of law in the sense in which the term is used in the present treatise. Hence the proper definition of a legal right is a right to control the action of others. It is not necessary that the control should be enforceable primarily by judicial process. father has a right to control a child, for instance, though the right is one in the exercise of which in many cases the courts give him no aid.2 Control, in the sense before us, therefore, is of two kinds: 1st, that which the law gives process to effect; 2d, that which the law permits and refuses to arrest, though ready if necessary to modify.3 Viewing legal right in this sense, it is distinguishable from might, which is 'capacity to compel without rightfulness, and from a merely moral right, in which there is rightfulness without capacity to compel. The distinction between moral and legal right is sometimes faint, yet its existence cannot be avoided. It is essential that the law of the land should specify what acts do and what acts do not impose an obligation; and the line drawn in both the Roman and the English common law, that the acceptance of a benefit does not involve a promise to pay for it, is founded on sound principle. It is true there are many cases in which we say that kindness received ought to be met by kindness returned. But it is obvious that business could not be safely conducted, if parties were to be made liable for debts which they did not contract in terms which both parties at the time regarded as creating indebtedness. If kindness were made compulsory, it would cease to be kindness. § 8. To a legal right, it is essential, in the first place, that 1 Kant's definition is to the same effect: "Die Befügniss zu zwingen," Rechtslehre Werke, vii. s. 29. 2 Infra, § 11. • See supra, 5. 4 See discussion in Whart. on Cont., §§ 784 et seq. not constitute a status. (2) The "things," relationship to which forms a distinct category, are things incorporeal as well as things corporeal, including, therefore, services which do not concern that which is tangible and material, as well as services almost exclusively relating to that which is tangible and material. Law a con liberty. § 10. The term law, as we have seen, is used in two senses: first as an order, and secondly as a rule. As an order, it denotes the sequences of the material uni- dition of verse. As a rule, it denotes the principles by which a community is governed. According to Kant, law, in this sense, is a summary of the conditions under which the wills of individuals are harmonized in a system of freedom.1 So far from law being, as is sometimes declared to be the case, the contradictory opposite of liberty, it is a condition without which liberty cannot exist. If the lawlessness of others be not restrained, the liberty of enjoyment of property and of personal security must cease to exist. There can be no liberty in the enjoyment of rights unless there be a law for the prevention of wrongs. "Sanc tion" is the imposed on § 11. "Sanction" is often treated as convertible with penalty, and no doubt this is correct in respect to criminal procedure. In civil procedure, however, the term has a much wider signification. A liability to be enjoined from doing a forbidden act, for instance, is a sanction, and so is a liability to pay damages for a forbidden act when done. In fact, whenever a party is subjected by law to a detriment of any kind for doing or attempting a forbidden thing, such detriment is the sanction of the law by which the thing is forbid Rechtslehre, Werke, vii. p. 273. 2 See on this topic Holland, Jur. 2d edition, 58. Prof. Holland quotes, in addition to Kant's definition above given, that of Locke, to the effect that "the end of the law is, not to abolish or restrain, but to preserve or enlarge freedom." Locke, Civil Government, i. 857. To these quotations may be added the following from Burke disobedience. (Burke's Works, iii. 49, 185): "Liberty must be limited in order to be possessed. The degree of restraint it is impossible in any case to settle precisely. But it ought to be the constant aim of every wise public council to find out, by cautious experiments and rational cool endeavors, with how little, not how much, of this restraint, the community can subsist." |