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same generic class as grants, and other expressions of human will. Like 

 private acts, therefore, they depend for their validity upon the right of the 

 legislature over the matters to which they relate. Wherever it is within 

 the right of the legislator to determine any matter, the expression of his 

 will with regard to it is conclusive ; and rights may, therefore, originate 

 in legislation as in contract, or delict; but if a law is in excess of the 

 rightful power or right of the legislator, or, to use a technical expression, 

 is ultra vires, it has no more force or validity in determining rights than 

 the act of a private individual. The existence, or non-existence of rights 

 cannot, therefore, be affirmed from the mere enactment of laws, but must 

 depend upon the existence of a precedent right in the legislator to deter- 

 mine the matter to which they relate ; and this is obviously true whatever 

 may be assumed with reference to the extent of the rights of the State. 

 For, even if it could be assumed that the right of the State to create, or to 

 destroy rights in private individuals is unlimited, the assumption could be 

 justified only as a principle of natural reason, and the laws enacted by 

 the State would thus derive their efficacy from the same principle. 



Laws, in this respect, are, therefore, analogous to contracts, grants and 

 other expressions of human will, and also to customs, and are to be re- 

 garded, not as establishing principles of right, or as entering into the 

 definition of jus, or the law, but as mere elements in the problem of 

 determining rights. 



(6) Obviously the same distinction must be made between theoretic and 

 positive jurisprudence as between theoretic and positive morality generally 

 — the former being jurisprudence, as scientifically determined, the latter, 

 as generally received. But the principles of jurisprudence are not only 

 in themselves exceptionally clear and determinate, but they have been 

 painfully and perseveringly elaborated by a long succession of great jur- 

 ists and philosophers from the time of Aristotle to the present day ; with 

 the result that as to fundamentals, the conformity of theoretic and positive 

 jurisprudence is almost perfect ; and nothing more is wanting to the per- 

 fection of Positive Right, as received in modern European countries, than 

 the accurate formulation of the fundamental principles implicitly con- 

 tained in every existing system, and their logical development, and con- 

 sistent application. 



In conclusion, it should be observed that the diflference existing between 

 Theoretic and Positive Jurisprudence has given rise to two schools of 

 jurists, which are known respectively as the Philosophic or Rational, and 

 the Historical. These, in popular opinion, are often opposed, and indeed 

 have often opposed themselves to each other ; but it is obvious, that there 

 is in fact no opposition ; but that the methods of the two schools are both 

 essential to the study of the subject, and that the true method combines 

 them both. 



The historical method, though inapplicable to theoretical jurispru- 

 dence, and other branches of pure science, is true of positive jurispru- 

 dence for the reason that general recognition constitutes in fact the es- 



