20 SEP 1961 LIBRARY Entered according to Act of Congress, in the year one thousand eight hundred and seventy six, by G. I. JONES & CO.. In the office of the Librarian of Congress, at Washington. THE SOUTHERN LAW REVIEW. VOL. II, N. S.] ST. LOUIS, APRIL, 1876. [No. I. I. CONTROVERSIES OF MODERN CONTINENTAL JURISTS. Preliminary. Various Theories of the Basis of General Jurisprudence.-Roman Institutes.-System of Utility of Hobbes.-System of Utility of Bentham.-System of Sociability-System of Perfectibility of Leibnitz.-System of the Possibility of Co-existence of Kant.-Eclectic System of Krause.-System of Rosmini, Before noticing some of the more modern controversies on the subject of general jurisprudence, it seems to be proper to refer to a few of the most celebrated theories which have been brought forward at different times as to the fundamental principles of the derivation of rights, the primary fabric of law. The subject itself is very obscure, and the manner in which it has been treated by the ablest minds has not served greatly to elucidate it. The more it is considered, the greater the difference of opinion seems to be. The learning on the question fills many volumes; and yet perhaps they hardly contain anywhere a general principle that would command universal assent. It is needless to say that the question is at the bottom of ethics as well as of law. It has therefore supplied an open field in which writers on morals and writers on jurisprudence have met in indiscriminate conflict. The question is none other than this, expressed in a variety of ways: What are the rights of men? Whence do they come? Upon what basis do they stand? What is the criterion of their existence? It is a known fact that there are certain principles which pervade all systems of laws, and which are common to all. There is no system of laws that does not forbid murder, or theft. Though the laws of different countries differ, yet they differ rather as to means than as to ends. There are many things which all laws abhor, many things which all laws favor. This substratum of laws which is presumed to exist, and practically does exist, wherever society exists—that which the legislator takes as a starting point—was called by the Roman jurists jus omnium gentium, the law of all peoples, or the jus naturale, the natural law. This being a constituent element of every conceivable or known system of laws, it is hence assumed that law is not an arbitrary thing; but that it is something either innate in man, or imposed on him by necessities which he cannot escape, and which, to some extent, prescribe its qualities. If this were so, it were to be supposed that the innate quality might be defined in the abstract, or that the nature of the necessities might be explained and summed up in a few words. If the vast bulk of the laws could thus be reduced to one or a few simple theorems, doubtless the gain would be great. The Roman Institutes possibly essayed to do this. They proclaimed, Juris præcepta sunt hæc: honeste vivere; alterum non lædere; suum cuique tribuere." But it is obvious that this tells us but little. The honeste vivere applies to morals rather than to law. The alterum non lædere is better. That we should not wantonly harm another is doubtless a principle at the bottom of all laws. The precept that we should give to each his due, leaves us in the dark as to what is his due, and as to the principle on which a man may claim any particular thing as his due. The celebrated precepts therefore mean but little, if anything, more than that it is the duty of the citizen to live morally, harmlessly, and in accordance with the laws, seeing that he must ascertain what is due. to others by reference to positive law. However prudent these precepts may be as a guide to the private citizen, they do not purport to be of any profit to the legislator, except within very narrow limits; nor to show forth the essential principle of the law itself, which defines the mutual and reciprocal rights and duties of men, and the absolute duties of men. What is called the System of Utility is supported by the great names of Hobbes, Bentham and Austin. But the system of Hobbes was different from that of Bentham, (based on the suggestions of Hume and Helvetius,) which was adopted by Austin. What Hobbes meant by utility was the utility of the individual; what they meant by utility was the utility of the individual and the public. The system of individual utility consists in this, that every man has a right to everything that is useful for the satisfaction of his wants or his pleasures. The limitation of his right is the physical impossibility which may exist as to his acquisition of objects which he thus finds to be useful; and this physical impossibility will result either from the weakness and incompetency of his own nature, or the resistance occasioned by the fact that others are pursuing the same objects, and are better equipped for their attainment. From these premises Hobbes drew his celebrated and necessary paradox that the natural state of man is war, war by every man against every other man. It has been said that he simply consecrated the right of the strongest; but that is not true in the sense that it would generally be understood; for by a very metaphysical train of thought, difficult to follow and difficult to refute, he worked out government and a system of regular laws from the resistance which all men in a given society oppose to the acquisitions of any one particular individual. There is a certain resemblance between his system and that of Kant, which we shall notice hereafter; but there is this intrinsic difference, that the former speaks as if under conviction that it is mere physical force that keeps every man from getting everything that he finds useful for his wants or for his pleasures, while the latter admits the restraining force of moral sentiments. It was from his thus ignoring the moral sentiments that a moral taint was supposed to inhere in the writings of Hobbes, which has conferred on him the distinction of being perhaps the best abused man that ever lived, unless it were Spinoza, and he and Spinoza incurred public odium in the self-same way. They both attempted to treat metaphysical questions with geometrical precision. Therefore it was that Hobbes discarded the moral sentiments as not being subject to any rigid and definite rule, not meaning to deny their existence. These writers were contemporaries, and their conceit was one of the conceits of the time. Hobbes has had many admirers, but probably not many disciples. The ablest and most zealous advocate of the theory of utility as understood by Bentham, that has arisen since Bentham died, is John Austin, whose works are so well known that it is not necessary to dwell on them here. The theory is that both law and morals rest on the basis of utility, general utility, including what is most useful to the individual, to others whose happiness depends on his acts, to the community, and to the world at large. The greatest good to the greatest number is the maxim which should govern all men, and which should guide all legislation. It is only by discovering what is useful in this larger sense, that we ascertain what is right. No one appears to have been more thoroughly convinced of the infallible truth of this doctrine than Mr. Austin; no one has supported it by more powerful argument. He left indeed but little to be said on that side. And yet in one place, in speaking of this conception, he said, "There are also considerable difficulties with which it really is embarrassed." The difficulties are certainly great. It denies the existence of a moral sense, except in so far as it may have been generated by considerations of utility. The sense of justice, which, when subjectively considered, is called conscience, is therefore not in any manner inherent in our natures. There is a theory, which is sometimes contended for, that every man is provided at his birth with a conscience, which is capable of guiding him continually in the path of rectitude; whose compunctious visitings unerringly reproach him for every violation of duty. But this is matter rather of dogmatic assertion than of argument or proof. The more intelligent friends of the doctrine of a moral sense choose |