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The definition of the word law has always been considered one of the most difficult in the whole range of scientific terms, and we need not be surprised at the hesitation with which the question would be frequently met: “What is law?" It is certainly possible for a practical lawyer to pass very well with only a familiar knowledge of business details, and without ever having acquired one idea of the general nature of law; but it cannot be denied that the direction of the present time renders it daily more imperative on all thinking lawyers and statesmen, to raise themselves above the incongruous mass of rules and statutes, and to endeavor to ascertain clearly the leading principles.

Let us introduce the philosophical explanation by a brief consideration of some opinions of eminent men; for such a comparison of different views will serve to secure us against contracted or prejudiced opinions. As we are fortunate enough to have within easy reach whatever past generations have accumulated of wisdom, we ought not to neglect consulting it, in determining questions of such vast importance.

From the period when the philosophy of Greece had attained its greatest splendor, we may see a constant conflict about the different ideas of law; and this, sustained through every succeeding age, has continued to our own time. The opinions on this subject, though numerous, may be classed under two great divisions; each of which is distinguished by a predominating character, and each entirely different from the other.

On the one hand, it is contended that there is nothing absolute or essential in the idea of law; but that it is a mere texture of all the external restrictions, which, like the meshes of a net, confine the members of society. These restrictions were supposed to have been entirely casual, just as any irregular force might have directed. In this view, consequently, law is but an empty shape : in essence, nothing, - in outward form, coercion.

With a few slight differences of opinion, the sophists may be ranged upon this side. Of these, Thrasymachus maintained that "might makes right,” or “that law is the result of force," and that“ wherever is the power, there whatever takes place, is lawful; and whatever is lawful, will take place.” Thus it might easily occur that one and the same thing should be both right and wrong at once; and thus morality and law would be reduced to a chimera. These ancient dogmas have been revived in our days by Hobbes,' Spinoza,' Hume,' Haller,' Hugo, Thomasius, Kant,' and Fichte.

On the other hand, the opinion that law has a foundation in reason has, with little differences, been maintained by Socrates, and his two disciples, Xenophon and Plato. The two last differed somewhat in detail, Xenophon, in his Cyropædia, representing law as the useful, the expedient, the prudent, (an opinion very similar to that of Bentham,) whilst Plato, in the first two books of the “Republic,'' considers law as the ideal good. Both, however, as well as Aristotle, 10 maintain, that the inoral is an essential element of law.

This latter view received its clearest exposition and most efficient support from the introduction of the equitable and

· His works, p. 598, and particularly “ De cive."
2 Tractatus theologico politicus, sec. 1 : Tractatus politicus.
* Essays, particularly that “on human nature."

• The restoration of the science of government; (Restauration der Stadtswissenschaft.)

o Compendium of natural law, (Lehrbuch des Naturrechts.) 6 Fundamentum juris nature et gentium, 1705.

7 The eternal peace, (Zum ewigen Frieden, 1795 ;) and “the elements of the science of law, examined in relation to metaphysics ; (Metaphysische Anfangsgrunde der Rechtslehre, 1797.)

. The foundation of natural law; (Grundlage des Naturrechts, 1796.) . De republica, libr. 10; De legibus, libr. 12; Politicus sive de regno. 10 Politicorum, lib. 8. @conom. lib. 2.

charitable principles of christianity, which necessarily extended its influence over morality and law. The christian idea of the dignity of the individual before God, introduced also into the law the recognition of the rights and dignity of the individual. This influence may be remarked in the criminal law, in the mitigation of punishment; in the law of nations, in the milder treatment of prisoners of war, etc. Thus it will be seen that law gradually gave its assent to some of the most eminent principles of christianity. It is upon individuals, and not upon states, that christianity has acted. States may be free without christianity, but individuals cannot.' It has, by rendering the state of man

? This religious influence, assisted by the more extended intelligence of modern times, has produced that rational freedom of the individual which is a striking characteristic of our age. This freedom consists in man's being gove erned by reason and conscience, and not by compulsory and irregular influences, whether by his own passions or from external force. The only mode of estimating man's real freedom is the comparison of his actions with the law of reason; or, as Cowper says,

“ He is the freeman whom the truth makes free,

And all are slaves beside." Such a freedom being dependent only on the law of reason requires of course no special form of government, whether republican, monarchical, or any other, for its enjoyment, but only a right administration of the law of the land. It is not the power of authority that abridges freedom and weighs unjustly; it is the arbitrary exercise of power; its being made to conquer right and

The freedom of the citizen, in the ancient republics of Greece and of Rome, was nothing more than the sum of the privileges which he enjoyed at the expense of slaves and barbarians without number; he himself was any. thing but free, being in every respect subject to the uncontrolled authority of the people: the individual was counted as nothing, when conflicting with the famous “ Salus publica,” or general interest. Neither were Greece and Rome, even in their best estate, adorned by citizens who could claim any other title than that of Greek and Roman citizens, the idea and title of citizen of the world being then utterly unknown among those nations. They looked upon all other portions of the globe, than their own country, as barbarous; and could not form a conception of any other kind of freedom, than that which was possessed in Athens or in Rome, and which they shared reluctantly with others.


more civilized, made it more peaceful and consequently more lawful.

This latter view was further sustained by the spirit of the Roman law. This law has exhibited such a fund of reason in its unequaled development of the most intricate relations, particularly in those of property, and of contracts, that from its character in this respect, more justly than from its regard to the freedom of the individual which it exhibits, it has acquired the title of “Written Reason” (ratio scripta). It has, to a great extent, practically realized all that the most distinguished philosophers of the second party have ascribed to their ideal of law. It has, consequently, by a development of the true principles of reason become an essential part of the law of all ages and nations. Christianity had, previous to its last compilation, exercised much influence on the Roman law.

Lastly, the nature of law according to this view, has been

The present civilized states of the world have no such citizens, indeed, as formed the nations of antiquity, but have, instead, that universal, individual freedom, whose foundation lies in reason and intelligence. The privileged freedom of antiquity, of course, lost value by becoming common, and sunk to utter worthlessness, when, on the fall of the Roman empire, it ceased to be a privilege, by being diffused among all nations. The modern christian freedom, on the other hand, becomes more precious with the increase of numbers and of knowledge of those who are admitted to it.

Some philosophers, as Hobbes, reasoning from the records of history, think that war of all against all, is the natural state of man; and others have arrived at the same conclusion by observation of the uncivilized character. In this they appear to mistake. War is certainly the natural consequence of barbarism, when, for want of better arguments, fists or clubs are used, as we daily see among the uneducated of our own cities. Among them, the criterion of rank and honor is the degree of the development of the body only. But the natural state of man is that in which all his powers are developed, as well of mind as of body, and in which he is governed by the dictates of reason. This state certainly cannot be said to be artificial, for whoever would say that, would declare our reason to be artificial, and our bodies the only part to be cultivated.

expounded by Blackstone,' Hooker,' Grotius,: Montesquieu,“ Jean Jacques Rousseau, Leibnitz, Hegel," Krause,* Wolf, Hoffman, and others.

This second view of the law, I hold to be the true one, and I shall now proceed to unfold and explain my own opinion. It might be inferred, that the foundation of law must be laid in an innate faculty of man's soul, and consequently one common to all men, from the fact that all nations have been known to possess certain invariable or surprisingly similar laws and institutions, whilst the individual laws of each have no connection with one another and seem to have sprung from local and other incidental calises. We may derive a further support of the inference, that there is this common principle, from the unanimity in the answers given by individuals even of the most different nations who may not have made a study of the law, to questions relating purely to justice and injustice. This unanimity will be found to hold to a greater and even surprising extent in young persons whose answers will generally be simply guided by the dictates of reason and conscience.

All those great questions which relate to man as such, as a being responsible to a superior, and as a member of society,

· Analysis of the laws of England, ch. I.
? Ecclesiastical Polity book 1.
3 De jure belli et pacis, lib. 3.
• De l'esprit des lois, livre 1.
5 Du contrat social ou principes du droit politique.

6 Nova Methodus discendæ docendæque jurisprudentiæ ex artis didactice principiis in parte generali præmissis, experientiæque luce; Cum præfatione C. L. B. de Wolf. Lips. et Halæ 1748; Principia philosophiæ; Codex juris gentium diplomaticus.

7 Philosophy of the law, p. 34, 63, etc.
8 Philosophy of the law, part 1, ch. 1.
9 Natural law, 1740.
10 Course of legal study, vol. I. proem.

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