« AnteriorContinuar »
of specialists. They assume the existence among statesmen and publicists of a sense of legal as distinguished from moral obligation in the affairs of nations.
4. Further, there is actually an international morality, distinct from and compatible with international law in the usual sense. As a citizen among citizens, so a nation among nations may do things which are discourteous, high-handed, savouring of sharp practice, or otherwise invidious and disliked, and yet within its admitted right and giving no formal ground of complaint. There is a margin of discretionary behaviour which is the province not of claims and despatches but of “friendly representations” and “good offices.”
If therefore we find that our definition of law does not include the law of nations, the proper conclusion is, not that there is no such thing as a law of nations and that we are to talk pedantically of positive international morality, but that our definition is inadequate.
To resume : we have as our total of divisions the following :A—I. Positive Jurisprudence: which is
d. analytical. II. Final Jurisprudence, which has a practical side (theory of legislation) and a speculative one (ethical jurisprudence or Naturrecht).
B. International Jurisprudence, which again is diversely treated by different authors, and might be, like municipal jurisprudence, subdivided according to their several methods if we were examining it more closely.
Putting aside the law of nations, let us see how and for what reasons one or another of the methods of jurisprudence has in different times and nations had the supremacy. We shall see at the same time that none of them can really subsist alone.
Consider, in the first place, the Roman lawyer of the classical period, as his learning and office are described by Ulpian. He is before all things iuris prudens, that is, a lawyer in our special and usual sense of the word; he is skilled and competent to advise in the laws of Rome; not the laws of Plato's Republic on the one hand, nor the particular ordinances of Rhodes or Ephesus on the other. His knowledge is eminently practical. But his practice branches out into more than one direction of science and speculation. There are ancient and half obsolete portions of Roman law which are not yet so obsolete but that an accomplished lawyer must know them. He must therefore be (if he aims at excellence and above common competence) to some extent a historian and an antiquary. There is every reason to think that the best Roman lawyers were also considerable historical scholars according to their means. This taste is conspicuous in Cicero, who is for us the standing pattern of the Roman statesman of the later Republic, proud of his own institutions and of his knowledge of
them, and at the same time eager to adorn his knowledge with Greek culture and philosophy. Thus Roman antiquities bring in history; and if the historical study was not scientific it was not for want of interest or of acute minds, but because comparative study had not gone far enough to make the scientific treatment of history, and especially of archaic history, practicable. Philosophy comes in by another door, which is opened by the Prætor's Edict. A jurisdiction extending beyond the still narrow bounds of Roman citizenship abandons the strait and archaic forms of Roman custom and procedure. It seeks under the local and peculiar forms principles that may
be admitted by the common reason of mankind. The same state of things which made Rome a cosmopolitan power had given a cosmopolitan stamp to the ethical and political speculations of Greek authors. Hence Greek philosophy was ready with speculative justification of the practical wisdom of Roman administrators; and the Romans, having no philosophy of their own, gladly took up the ideas thus offered to them. . On the actual substance of Roman law Greek speculation probably left hardly any mark, not even on the Prætorian part of it; but on the general conceptions of the State, of law and of justice, it left a good deal. The Roman was taught to look beyond the traditions and statutes of the Quirites for the source and the majesty of the law which was his study. He sought a wider ethical foundation for legal institutions, and delighted to think, as Ulpian says, that his learning was a genuine branch of philosophy. Nothing is easier than to ridicule Ulpian's exordium in detail. Latin is hardly a philosophical language, to begin with, notwithstanding Cicero's efforts to make it so. But it was better that Celsus should define law as ars boni et aequi, and Ulpian think the definition perfect, than that they should think all legal science was contained in the exact framing of an issue, or in discovering what had become of a nudum ius Quiritium. And perhaps the definition is not altogether absurd. Why, says our modern critic, it includes morality and all sorts of things that are not law. Let us pause a moment. I have an odd prejudice in favour of making sense of what has been said by men who (to judge from that which is on all hands admitted of their performances) were not likely to talk nonsense. I would rather suspect myself of having missed a shade of meaning than write down Celsus an ass for his definition, and Ulpian for approving it. An "art of what is right and fair” sounds vague enough. But let us expand the phrase a little (without really adding anything of our own): "a skilled application of the principles of right and fairness.”
Is that so hopelessly unlike the purpose aimed at, if not always accomplished, by lawgivers and courts of justice ? Observe, it is art, a special and skilled application of knowledge. And that is just what common morality is not; for if it were an art practicable only by specially skilled persons, it evidently would not be morality. Law then, according to Celsus, is so much of the permanent principles of moral justice as is reduced or reducible to a technical system. His definition is a concise, and (as I think) a sufficiently clear statement of the point of view taken in modern times by what I have called Ethical Jurisprudence. But he fails to distinguish, you may say, between what is and what ought to be. True, but his time was not ripe for the distinction. If it could then have been made with the trenchant clearness of Hobbes or Bentham, it is doubtful whether Roman or European jurisprudence would have been any the better. Roman law had to be made broad enough to be in due time the strength of European civilisation ; and nothing but a large infusion of ethical and cosmopolitan feeling could have done this. Let us not be over-critical about the form. What more idle fiction is there, philosophically speaking, than the original contract between king and people? Yet without it the English Revolution might never have been accomplished and the Whig party never have taken shape.
Nor was the analytical element wanting in classical Roman jurisprudence, though it was not clearly or separately conceived. Technical ideas were furnished in abundance by the historical tradition of the ancient system, and by the newer and more extensive range of Prætorian jurisdiction.
The classical jurists put forth their strength in fixing the bounds of these ideas and developing their consequences.
Their method was not consciously analytical, but their work (even when we are not satisfied with its results) is a model of legal analysis. Their tact and sense of analogy go far beyond the region of bare empirical