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lation and government which are in this manner put forward as claiming assent from all men in so far as they are rational and social beings are said to be of natural obligation, and the sum of them is called the law of nature, droit naturel, Naturrecht. The law which would in itself be best for a given nation in given circumstances is sometimes called, by authors who take this point of view, positive law, the rules of actual civil obligation which we of the English school call positive law being by these authors named enacted laws, and relegated to a subordinate place in their exposition.
This view, such as I have endeavoured to characterise it, is still prevalent among Continental philosophers and jurists. The sort of doctrine which embodies it may be called Ethical Jurisprudence, for the law of nature, whatever it may be, is alleged to be binding on all men's reason, which is as much as to say that it is of like obligation and equally wide application with morality: and indeed its principles appear to be nothing else than those moral and social precepts which, by general consent, or in the opinion of the expounder for the time being, are convenient to be enforced by the power of the State, or would be so in a perfect State. By those who take up this doctrine it is considered the most important and dignified branch of legal science, and is often called the philosophy of law in an eminent or exclusive sense, and though it is not in itself incompatible with other branches of jurisprudence, it is apt in the hands of these authors to thrust them very much into
the background. So far as my acquaintance with it goes, it appears to me to lump together in a cumbrous and over-ambitious manner a good many topics in the theory of government, politics, and legislation, which better treated separately. Nevertheless, we cannot dismiss it in the lump as absurd or illegitimate. The theory of legislation must take its most general data from the most general facts of civilised human society. It must equally take its first principles, avowedly or tacitly, from ethics. Ethical Jurisprudence, therefore, is to a certain extent not only legitimate, but necessary. The only strictly necessary difference between our “ theory of legislation ” and a German philosopher's Naturrecht is, that the Continental schools consider their ideal of legal institutions as a thing to be contemplated in and for itself, with a metaphysical interest which is as it were cut adrift from practice; while the Englishman's ideal is of something to be realised, or approached as near as may be, in an actual State, for actual citizens, and by the positive enactment of a legislature. But the difference is vastly exaggerated in outward show by the circumstance (not that it is an accidental one) that the English and the Continental schools found their theories on widely different ethical systems. In the sense in which I have distinguished the terms, there might be a Kantian theory of legislation and an utilitarian Naturrecht.
Many chapters of Jr. Herbert Spencer's recent work would be most intelligibly described to a Continental jurist as
Naturrecht treated from the point of view of Mr. Spencer's philosophy of evolution.? Transcendent theories of moral obligation, however, naturally lead to a transcendent philosophy of law which constructs an ideal for its own sake; and the consideration of morality as a means to welfare or happiness leads to the consideration of the State and its institutions in the same manner, and to the framing of political conceptions for practical purposes and under practical tests. In other words, the political grounds and reasons of legal institutions will present themselves to the philosopher who holds a transcendental theory of ethics as texts or chapters of the law of nature; while to such as are content to follow the humbler but surer path of experience they will rather appear as topics to be used in the theory of legislation. The ethical habit of thought will impart its own form and colour to the political and legal philosophy founded
Thus the students of France and Germany, trained on the lines of Descartes or Kant, are prone to make much of the law of nature; Englishmen who study law with any theoretical interest, deriving their impulse mainly from Bentham, think of law reform and active legislation. And, for the reason just given, not only the English and the Continental student differ in their cast of thought, but each expresses his thought in a language unfamiliar to the
1 Since these remarks were written, the term has been actually applied to the theories of Bentham and Austin by an eminent living Continental master of the historical school, Brunner of Berlin. Truly philosophy has many and subtle revenges.
other, and understood by him with difficulty. The most hopeful common ground for a better understanding is to be found, I think, in the historical school. In Bluntschli's or Holtzendorff's work, for example, German philosophical ideas are tempered by history and knowledge of practical politics into a shape which need not frighten any fairly open-minded English reader.
Before we leave this topic of Final or Ethical Jurisprudence, I will remark that, although a theory of the law of nature or of legislation must rest on some definite kind of ethical temper, I do not see why it should formally assume any particular theory of ethics. In either shape—Naturrecht, or theory of legislation—there must be some positive conception of the purpose for which the State exists; because that purpose, whatever we consider it to be, fixes the ultimate object of all laws and legislation. This is fundamental and unavoidable. And the conception chosen by the theorist can hardly fail to be associated with one or another side of the standing controversy between the various “Methods of Ethics.” But that is no reason why he should take upon himself the burden of a whole ethical doctrine. If he feels moved to write on ethics as well as on jurisprudence, he may do it separately. For example, Austin's second, third, and fourth Lectures appear to me to have no business where they are. They are not jurisprudence at all, but ethics out of place. Still more does this apply to all the expositions of what is called the law of nature, Continental, Scottish and American.
There is another branch of legal science of which I have as yet said nothing, and which stands by itself; I mean that which deals with existing or possible relations not between citizens of the same State but between independent States. International Law is a true branch of jurisprudence, notwithstanding all that may
be said about its want of sovereign power and a tribunal. You may define it as “positive international morality” not having the nature of true law, but if you do, the facts are against you. For what are the facts ?
1. The doctrines of international law are founded on legal, not simply on ethical ideas. They are not merely prevalent opinions as to what is morally right and proper, but something as closely analogous to civil laws as the nature of the case will admit. They purport to be rules of strict justice, not counsels of perfection.
2. Since they assumed a coherent shape they have been the special study of men of law, and have been discussed by the methods appropriate to jurisprudence, and not by those of moral philosophy.
3. There is also a practical test, and a conclusive one. If international law were only a kind of morality the framers of State papers concerning foreign policy would throw all their strength on moral argument. But as a matter of fact this is not what they do. They appeal not to the general feeling of moral rightness, but to precedents, to treaties, and to the opinions
1 I am happy to be now supported in this view by Mr. Westlake (International Law: an Introductory Lecture, Cambridge, 1888).