324 THEORY AND ADMINISTRATION 



as a Scientific Organism : l " Jurisprudence is a branch of ethics. Its 

 function as a science is to establish the essential principles of right; 

 and as right only obtains reality among men who are united into 

 a state, it has also to establish the fundamental principles of the 

 state." 



It is to be observed, however, that a system of Naturrecht, as thus 

 denned, is not conceived to set forth a complete ethical system. To a 

 Continental, Recht or droit includes only that portion of human con- 

 duct which is possible of enforcement by the state, without reference 

 to the fact whether it is so enforced or not. Thus, upon the Conti- 

 nent, ethics is divided into two parts, the one dealing with actions 

 which can be enforced by external compulsion, and as such forming 

 the subject-matter of jurisprudence or Rechtslehre, or the science 

 of droit or Recht: the other dealing with those actions that cannot 

 be so compelled and which must therefore be left to individual 

 conscience, and as such forming the subject-matter of morale or 

 Tugendlehre or Ethik in a narrower sense, or the science of moralite 

 or Tugend. It will thus be seen that in France and Germany droit 

 and Recht are applied not only to actions that actually are enforced 

 by the state, and which the English and American jurist designates 

 as positive law or law proper, but to all actions capable of such 

 enforcement, whether or not they are as a fact so enforced. Corre- 

 spondingly the terms morale and Tugendlehre are not made appli- 

 cable to all portions of right conduct, but simply and solely to those 

 actions that do not admit of external compulsion. 



With this explanation of the meaning of the term " philosophy of 

 law," we can see how necessarily intimate is its relation with political 

 philosophy. In so far as laws are viewed as commands of a political 

 superior to a political inferior, from a sovereign to a subject, a legal 

 philosophy is, as has been already said, nothing more than a particu- 

 lar branch of political inquiry. Also, when viewed as a search for 

 ideal principles of right, its connection with political speculations is 

 very close. For, in determining these ideal principles, the consid- 

 erations involved are almost identical with those that the political 

 philosopher has to bear in mind in his attempts to ascertain the 

 elements of an ideal commonwealth. In fact, the only important 

 distinction between a system of ideal law and a political Utopia is that 

 in the latter there must necessarily be included, in addition to the 

 statement of the general principles of right which should be recog- 

 nized, the outline of a scheme of governmental organization through 

 which such principles are to be declared and enforced. 



1 Hastie, transl. p. 140. 



