292 



to, though denying the existence of natural rights, do not, in general, 

 differ from the rest of mankind in admitting the existence of moral dis- 

 tinctions, they are clearly guilty of logical inconsistency ; and this, indeed, 

 is the only plea upon which they can be acquitted of the graver charge of 

 being, in tlieory, the enemies of Justice and of Morality. 



§49. Of tJie Relation Between Natural, or Theoretic, and Positive RigJit. 



Thus far, the doctrine is sufficiently plain, and is, in fact, generally ad- 

 mitted. Nor can there be any doubt that there is a necessary and essen- 

 tial connection between natural, or theoretic, and positive right ; but the 

 more difficult problem remains, to determine the precise nature of the 

 relation between them. This problem, the complete solution of whicli is 

 just now the great desideratum of jural science, is too extensive to be 

 adequately treated here ; but the general nature of the relation may be 

 readily explained. 



(1) This relation may be expressed by saying that the principles of 

 natural right, so far as they are determinate, and are known to and recog- 

 nized by the people generally, or, in other words, so far as they are ex- 

 pressed or manifested in the general conscience, or positive moralitj', of 

 the people, constitute a part of the law ; by which is meant, that they 

 constitute, not merely the material out of which, or the norm after which, 

 the law is fashioned, or made, as is the opinion of Austin and others, but 

 an integral, or component part of the law, in the same sense, precisely, as 

 do statutes and customs. 



(2) With reference to public right, or the rights of the State, this is suffi- 

 ciently obvious ; for, with regard to the State, no other law can be con- 

 ceived of as governing it, than natural right, or justice ; and without this, 

 as we have observed, it is impossible to show that the State has anj'' 

 rights, or that any one is under obligation to submit to its power. Nor is 

 this proposition inconsistent with the acknowledged existence of unwrit- 

 ten constitutional law and of international law ; for these are but terms, 

 denoting the law of nature, or natural right, as applied to the internal, 

 and the external jural relations of State ; nor can any other definition be 

 conceived of. They are either this, or they are not law ; and unless the 

 former, the latter proposition, whicli is the doctrine of the Austlnian 

 jurists, must be accepted. These jurists are, indeed, right in asserting 

 that both constitutional and international law are merely positive 

 morality ; but this is merely to assert that positive morality, or, rather, 

 that part of it that is called positive right, is, in eflfect, law. 



It may, indeed, be said, and the proposition cannot be disputed, that 

 both laws are based largely upon custom, or, as it is called, with reference 

 to the latter, the usage of nations. (/) But, as we have seen, custom 

 does not, of itself, constitute law : it is law only to the extent that reason, 

 or natural right, determines it to be so ; for it is a received principle of 

 jurisprudence, that the unreasonable customs carry with them no ob- 

 ligation. 



