294 



doctrine of actions, or remedies for the enforcement of rights. Right, or 

 the doctrine of rights, as we have defined it, constitutes the substantive 

 part of the law, for which all the other parts exist ; which accords with 

 the division of the law by Bentham into substantive and adjective law. 

 Our proposition is to be understood, therefore, as asserting simply the 

 identity of the substantive law, or the doctrine of rights, with natural 

 right : and the correctness of our reasoning may be very readily verified 

 by comparing the different systems of law prevailing in modern Europe ; 

 in all of which the substantive part of the law, or the doctrine of rights, 

 will be found to be substantially identical : so that a man may travel 

 throughout all the countries of the civilized world, without finding his 

 rights substantially varied. Every wliere, his rights to personal liberty and 

 security, to his property, to the payment of debts due him, and the per- 

 formance of other contracts, and to compensation, or restitution in case of 

 delict ; and, in short, his rights generally, as enjoyed by him at home, 

 will be recognized. 



(4) This view of the nature of the private right is, in fact, verified by 

 the early history and the subsequent development of every system of law. 

 In all countries, positive law commences merely with the establishment 

 of a jurisdiction, or power to declare justice, or right, (in the words of 

 Magna Charta, justitiam vel rectum) in controversies presented for decis- 

 ion ; and the law of private right consists merely of the principles of 

 justice, or natural right, which, of course, includes the observance of ex- 

 isting customs. Afterwards, the law is modified by new customs, and 

 especially by the custom of the courts, or judicial precedents ; but it is 

 only at a later period, and until modern times very sparingly, that the 

 law of private right is materially affected by legislation. In the begin- 

 ning, as justly observed by Sir Henry Maine, legislation is an unknown 

 phenomenon. "It is curious," he says, in a passage already partly 

 quoted, "that the further we penetrate into the primitive history of 

 thought, the further we find ourselves from a conception of the law which 

 at all resembles a compound of the elements which Bentham determined. 

 It is certain, that, in the infancy of mankind, no sort of legislature, nor 

 even a distinct author of law, is contemplated, or even conceived of ;" 

 and he adds, "Zeus, or the human king on earth, is not a law maker, but 

 a judge." * 



From this beginning, it is a well-known historical f\ict, that both in our 

 own and in the Roman system, the law has been developed mainly by 

 the decisions of the courts, and is therefore an expression, not of the will, 

 but of the judgment, or conscience, of the State. In this development, 

 legislation, until recently, has had but little part ; and it is to be regarded, 

 not as an essential or necessary element in the law, but merely as a means 

 of modifying its natural development. 



The truth of the theory of the Historical School of jurists — as applied 

 to positive jurisprudence — must therefore be admitted by all who are 



* Ancient Law, chap. i. 



